F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 5, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-3417
v. (D.C. Nos. 05-CV-3195-M LB and
01-CR-10136-M LB)
CHARLES TAYLOR, (D . Kan.)
Defendant - Appellant.
OR DER DENY ING A CERTIFICATE O F APPEALABILITY
Submitted on the brief:
Charles Taylor, filed a brief pro se.
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
HA RTZ, Circuit Judge.
Charles Taylor pleaded guilty in the United States District Court for the
District of Kansas to bank robbery. See 18 U.S.C. § 2113(a). After his direct
appeal w as denied, United States v. Taylor, 353 F.3d 868 (10th Cir. 2003), he
filed a motion for habeas relief under 28 U.S.C. § 2255, alleging a Speedy Trial
Act violation and several instances of ineffective assistance of counsel. The
district court denied the motion, and M r. Taylor now seeks a certificate of
appealability (COA) from us. See 28 U.S.C. § 2253(c). W e hold that M r. Taylor
cannot obtain a COA for his Speedy Trial Act claim because it alleges only a
statutory violation. The ineffective-assistance claims are clearly without merit, so
we deny a COA for them as well, and dismiss the appeal.
I. B ACKGR OU N D
M r. Taylor was indicted on November 27, 2001, on a single count of bank
robbery. After denial of his motion to dismiss the indictment for an alleged
Speedy Trial Act violation, he pleaded guilty to the indictment, conditioned on
his right to appeal. Before sentencing he objected to the conclusion in the
presentence report (PSR) that he was a career offender. The district court
overruled the objection and sentenced him to 170 months’ imprisonment.
Judgment was entered on January 21, 2003. On direct appeal M r. Taylor, still
represented by his trial counsel, raised only the alleged Speedy Trial Act
violation, and the appeal was denied. See Taylor, 353 F.3d 868.
In M ay 2005 M r. Taylor filed a motion for habeas corpus relief under 28
U.S.C. § 2255. Reading his pro se habeas motion liberally, see Brown v. Perrill,
21 F.3d 1008, 1009 (10th Cir. 1994), we believe that he is claiming six violations
of his rights: (1) a Speedy Trial Act violation; and five instances of ineffective
assistance of counsel— (2) counsel failed to advise him of the potential effect of a
pro se motion on a Speedy Trial Act claim; (3) counsel failed to advise the
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appellate court of this failure to give necessary advice; (4) counsel informed him
that he was facing only 57 to 78 months’ imprisonment, when, in fact, the
Guidelines range was 151 to 188 months’ imprisonment; (5) counsel failed to
challenge on direct appeal his classification as a career offender; and (6) counsel
failed to challenge the indictment as defective because it did not allege that he
robbed the bank knowingly or intentionally.
The district court denied M r. Taylor’s Speedy Trial Act claim on the
ground that it was foreclosed by our decision on direct appeal. The government
was ordered to respond to the remaining claims. It did so, and the district court
then rejected those claims as w ell. The district court did not rule on M r. Taylor’s
application for a COA, so we deem it denied. See United States v. Kennedy, 225
F.3d 1187, 1193 n.3 (10th Cir. 2000).
II. D ISC USSIO N
“A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
means that the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). In other words, the applicant must show that
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the district court’s resolution of the constitutional claim was either “debatable or
wrong.” Id.
A. Speedy Trial Act
The district court denied M r. Taylor’s Speedy Trial Act claim because it
was foreclosed by his direct appeal of the issue. He contends that the arguments
he now raises w ere not addressed on direct appeal. But even if the arguments
were not foreclosed and have merit, we cannot grant a COA because he alleges
only a statutory violation. Under the Antiterrorism and Effective Death Penalty
Act (AEDPA ), a COA may issue only when the applicant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(emphasis added). This is in contrast to the pre-AEDPA standard, announced in
Barefoot v. Estelle, that the habeas petitioner had to make a “substantial showing
of the denial of a federal right.” 463 U.S. 880, 893 (1983) (emphasis added;
internal quotation marks and brackets omitted); see Slack, 529 U.S. at 483
(“Congress had before it the meaning Barefoot had given to the words it selected;
and we give the language in § 2253(c) the meaning ascribed it in Barefoot, with
due note for the substitution ofSeptember 15, 2006 the word ‘constitutional.’”).
Thus, a COA cannot issue when the habeas petitioner has shown the denial of
only a statutory right. See United States v. Gordon, 172 F.3d 753, 754-55 (10th
Cir. 1999); United States v. Cepero, 224 F.3d 256, 265 (3d Cir. 2000) (en banc)
(“Section 2255 petitioners may allege and have adjudicated non-constitutional
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issues in district court[,]” but “the courts of appeals under the post-AED PA
version of § 2253(c)(2) have limited jurisdiction over unsuccessful § 2255
petitions.”); see generally 2 Randy Hertz & James S. Liebman, Federal Habeas
Corpus Practice and Procedure § 35.4b, at 1572-73 n.22 (4th ed. 2001) (citing
cases). But cf. 1 Hertz & Liebman, supra, § 9.1, at 449 (suggesting that AED PA
uses “‘constitutional violations’” as “a rough shorthand for the jurisdiction
headings in the relevant, and unamended, provisions of the habeas corpus statute,
namely, ‘violation[s] of the Constitution or laws or treaties of the United
States’”). In other words, no matter how clearly the § 2255 movant can show that
the district court erred in denying a statutory claim in his habeas petition, he is
not entitled to a COA to have his claim heard on appeal.
B. Ineffective Assistance of C ounsel
To prevail on an ineffective-assistance-of-counsel claim, M r. Taylor must
show that his “counsel’s representation fell below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694. Our review is
“highly deferential” and we “indulge in a strong presumption that counsel’s
conduct falls within the w ide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
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challenged action might be considered sound trial strategy.” Id. at 689 (internal
quotation marks omitted).
1. Alleged Failures w ith Respect to Speedy Trial Act C laim
M r. Taylor raises two related ineffective-assistance claims arising out of
his Speedy Trial Act claim. First, he contends that while he was a pretrial
detainee, he filed a pro se motion for habeas relief under 28 U.S.C. § 2241 and
informed his counsel that he had done so. “Counsel for the plaintiff failed to
notify the plaintiff that any motions filed stopped the clock for [Speedy Trial Act]
purposes,” he asserts, and the “14 days it took the court to deny the motion could
have totally changed the outcome of the motion to dismiss.” R. Vol. I Doc. 55 at
6. Second, he contends that if counsel had placed this information before this
court on appeal, “the outcome of the appellate court[’]s decision may have been
different.” Id.
Both claims lack merit. W e cannot fault his trial counsel for failing to
anticipate (1) that his client would file a pro se pleading and (2) that the pleading
would prove relevant (much less critical) to a future speedy-trial motion. Nor can
we fault counsel for failing to advise the court of these matters on direct appeal,
because M r. Taylor does not explain (nor do we see) how doing so would have
affected the outcome on appeal. No reasonable jurist would rule in M r. Taylor’s
favor on either claim.
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2. M isinformation about Sentencing R ange
Next, M r. Taylor complains that his attorney told him that he was facing a
sentence of imprisonment of 57 to 78 months, when the sentencing range under
the Sentencing Guidelines turned out to be 151 to 188 months. M r. Taylor says
that he “wanted to go to trial . . . [b]ut his counsel advised him he was facing a
much lesser amount of time th[a]n he actually received.” Id. at 6-7.
“In the guilty plea context, to establish a claim for ineffective assistance of
counsel, a defendant must show that counsel’s performance fell below an
objective standard of reasonableness and that, but for counsel’s error, the
defendant would have insisted upon going to trial.” United States v. Silva, 430
F.3d 1096, 1099 (10th Cir. 2005). Here, even if we assume that counsel’s
performance was deficient in estimating the sentencing range, M r. Taylor has not
shown that he was prejudiced by the failure. The district court states in its order
denying habeas relief:
The plea was made pursuant to an agreement in which defendant
acknowledged that he faced a statutory maximum sentence of
imprisonment for up to twenty years. The agreement also provided
that “the United States has advised this defendant that the matter of
sentence is entirely within the purview of the sentencing court, and
that the United States made no promises to this defendant or his
attorney, regarding what sentence might be imposed.” . . . [T]he
defendant also signed and sw ore to a petition to enter a plea of guilty
which stated that the maximum sentence w as twenty years
imprisonment and contained defendant’s acknowledgment that “I
know the sentence I will receive is solely a matter within the control
of the Judge.” A transcript of the plea w as not prepared but the court
is confident that he followed his usual procedure of explaining the
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maximum penalty to the defendant, ensuring that defendant
understood the maximum penalty and that no promises had been
made to him regarding a specific sentence. Defendant does not
contend otherwise.
R. Vol. I Doc. 60 at 1-2. Because M r. Taylor has not pointed to anything in the
record to the contrary, we will accept the district court’s description of the plea
agreement. See United States v. LaH ue, 261 F.3d 993, 1015 (10th Cir. 2001)
(defendant did not cite to documents in voluminous record to support claim so w e
“defer to the district court’s rulings” (internal quotation marks omitted)). In
virtually the same circumstances in another case, we held that the defendant’s
“admissions alone belie [his] claim that he was prejudiced by counsel’s failure to
accurately predict the impact of his criminal history.” Silva, 430 F.3d at 1100.
The district court’s denial of relief on this claim would not be debatable among
reasonable jurists.
3. Failure to Challenge Career-O ffender Classification
M r. Taylor contends “that his counsel failed to raise his [career-offender]
enhancement in direct appeal when the plaintiff requested he do so.” R. Vol. I
Doc. 55 at 7. He acknowledges that at sentencing his attorney “objected
successfully to 2 out of 3 of the enhancements [proposed by the presentence
report]” but was unsuccessful in challenging his classification as a career
offender. Id. The district court ruled that this ineffectiveness claim had no merit.
Defendant claims that both of his 1992 drug trafficking convictions
are “invalid” because his civil rights were restored and further that
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his 1994 drug trafficking conviction was for a misdemeanor. He
presents no evidence to support his former contention. His latter
contention is conclusively refuted by the court documents admitted
without objection at sentencing . . . .
Thus, defendant’s classification as a career offender was
correct. His counsel was not ineffective for failing to raise
defendant’s career offender status on direct appeal.
Id. Doc. 60 at 3-4. No reasonable jurist would have ruled otherw ise.
4. Failure to Challenge Indictment
Finally, M r. Taylor contends that his counsel was ineffective for failing to
argue that the “indictment was defective when it failed to allege the plaintiff
robbed the Bank of America knowingly or intentionally or by words of similar
import.” Id. Doc. 55 at 7. The indictment states:
[T]he defendant, CHARLES TAYLOR, did by force and violence or
intimidation, take from the person or presence of employees of the
Bank of America . . . approximately One Thousand Three Hundred
Twenty-seven Dollars ($1,327.00) in money belonging to and in the
care, custody, control, management and possession of Bank of
America, the deposits of which were then insured by the Federal
Deposit Insurance Corporation.
In violation of Title 18, United States Code, Section 2113(a).
Id. Doc. 10. The relevant portion of 18 U .S.C. § 2113(a) states:
W hoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank . . . [s]hall be fined under
this title or imprisoned not more than twenty years, or both.
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Although this statute does not specify a mens rea, the Supreme Court has stated
that it “requir[es] proof of general intent— that is, that the defendant possessed
knowledge with respect to the actus reus of the crime.” Carter v. United States,
530 U.S. 255, 268 (2000); see United States v. Zunie, 444 F.3d 1230, 1234 (10th
Cir. 2006) (“A specific intent crime is one in which an act was committed
voluntarily and purposely with the specific intent to do something the law forbids.
In contrast, a general intent crime is one in which an act was done voluntarily and
intentionally, and not because of mistake or accident.” (internal quotation marks
omitted)).
Nevertheless, counsel was not ineffective for failing to challenge the
omission from the indictment of an explicit allegation of general intent. Ample
authority supports the validity of the indictment. Courts have held that when
comm ission of the charged acts strongly implies the actor’s general intent, the
indictment need not specifically allege that intent. For example, when an
indictment for illegal reentry under 8 U.S.C. § 1326(a) fails to allege that the
deported alien knowingly or voluntarily reentered the country, sister circuits have
nevertheless upheld the indictment because it may be “presum[ed] that a
defendant who is found in the United States willfully and knowingly acted in
order to enter this country. Therefore, alleging that the defendant is a deported
alien subsequently found in the United States w ithout permission suffices to
allege general intent.” United States v. Rivera-Sillas, 417 F.3d 1014, 1020 (9th
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Cir. 2005) (internal quotation marks and brackets omitted); accord United States
v. Berrios-Centeno, 250 F.3d 294, 299 (5th Cir. 2001). Cf. United States v.
Henry, 288 F.3d 657, 662-63 (5th Cir. 2002) (following Berrios-Centeno but with
some reservations). M ore than half a century ago we made essentially the same
point: “W here the act charged necessarily includes a general intent or is in its
very nature unlawful, it need not be alleged that the act was done unlawfully.”
Braswell v. United States, 224 F.2d 706, 709 (10th Cir. 1955) (“[T]he only intent
necessary is the intent to accomplish the act of transportation across a state line,
and the statement of the act itself implies such intent.”). This analysis would
apply to M r. Taylor’s offense. As the Ninth Circuit said with respect to a
conviction under 18 U.S.C. § 2113(a), “the requisite criminal intent [can be
inferred] from the fact that the defendant took the property of another by force
and violence, or intimidation.” United States v. Foppe, 993 F.2d 1444, 1451 (9th
Cir. 1993); see United States v. M ozee, 405 F.3d 1082, 1087 (10th Cir. 2005)
(“As a general intent crime, aggravated assault allows the element of intent to be
inferred from doing the act constituting the offense charged, such as pointing a
loaded gun at a victim.”). In light of this authority, M r. Taylor’s attorney did not
render deficient representation by declining to challenge the indictment for failure
to allege general intent explicitly, particularly when (because the government
could reindict with the mens rea element explicitly included in the indictment) it
is not at all clear how even a successful challenge would have ultimately
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benefitted M r. Taylor. See United States v. M agleby, 420 F.3d 1136, 1143 (10th
Cir. 2005) (counsel not deficient in failing to raise a claim when there is a lack of
authority, especially Supreme Court and Tenth Circuit authority, to support the
claim).
III. C ON CLU SIO N
W e DENY a COA and DISM ISS the appeal.
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