D.C. Nos. 1:11-CV-00037-MV-LAM and 1:03-CR-00477-MV-1, D. New Mexico
Before HARTZ, EBEL, and MURPHY, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy Circuit Judge
This matter is before the court on Eric Johnson's pro se request for a certificate of appealability ("COA"). Johnson seeks a COA so he can appeal the district court's denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B). Because Johnson has not "made a substantial showing of the denial of a constitutional right, " id. § 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
In March of 2003, a federal grand jury returned an indictment against Johnson charging him with: (1) being a felon in possession of a firearm; (2) possessing marijuana with intent to distribute; and (3) possessing a firearm during or in relation to a drug trafficking offense. Johnson proved unable to work with counsel. Eventually, acting pro se but with the assistance of stand-by counsel, Johnson pleaded guilty to possessing a firearm during or in relation to a drug trafficking offense. Shortly thereafter, however, Johnson moved to withdraw his guilty plea and for appointment of substitute stand-by counsel. The district court denied Johnson's motion to withdraw his guilty plea. As noted by this court on direct appeal, "[v]arious circumstances intervened to delay sentencing." United States v. Johnson, 376 F.App'x 858, 860 (10th Cir. 2010). Those circumstances are set out in detail in the magistrate judge's Report and Recommendation. Suffice to say, competency proceedings and psychological evaluations, coupled with additional changes in counsel, consumed approximately three years. Ultimately, the district court concluded Johnson was competent when he entered his guilty plea and was competent to proceed to sentencing. Finally, in December 2008, the district court sentenced Johnson to a term of imprisonment of 180 months.
This court affirmed the district court's judgment of conviction. Johnson, 376 F.App'x at 862. Johnson then filed the instant § 2255 motion, raising ten grounds for relief. The matter was referred to a federal magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that Johnson's § 2255 motion be denied. Upon de novo review, the district court overruled Johnson's objections, adopted the Report and Recommendation, and dismissed with prejudice Johnson's § 2255 motion.
The granting of a COA is a jurisdictional prerequisite to Johnson's appeal from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a COA, Johnson must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate "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." Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether Johnson has satisfied his burden, this court undertakes "a preliminary, though not definitive, consideration of the [legal] framework" applicable to each of his claims. Id. at 338. Although Johnson need not demonstrate his appeal will succeed to be entitled to a COA, he must "prove something more than the absence of frivolity or the existence of mere good faith." Id.
Having undertaken a review of Johnson's appellate filings, the magistrate judge's Report and Recommendation, the district court's order, and the entire record before this court pursuant to the framework set out by the Supreme Court in Miller-El, we conclude Johnson is not entitled to a COA. The district court's resolution of Johnson's § 2255 motion is not reasonably subject to debate and the issues he seeks to raise on appeal are not adequate to deserve further proceedings. In so concluding, this court finds it unnecessary, with one small exception, to recapitulate the extensive analysis of Johnson's claims set out in the magistrate judge's Report and Recommendation and the district court's order.
As to Johnson's assertion that an unnamed prosecutor interfered with his ability to retain attorney Joe Romero, we note the following. Neither of the letters from Romero to Billie Ray Bennett support Johnson's assertion of prosecutorial misconduct. As noted by the district court, the letter dated December 29th merely reflects the financial terms upon which Romero agreed to represent Johnson. The January 14th letter reflects Romero's decision to return Johnson's payment:
Enclosed please find [a check in the amount of $2500]. By this letter I am withdrawing from representing Mr. Johnson . . . at this time. I have learned that my Entry of Appearance would have been contested by the prosecutor in the case and will not be able to represent Mr. Johnson. However, if Mr. Johnson is successful in his motion to withdraw from his plea agreement, I will be able to represent him at trial.
Contrary to Johnson's arguments, this letter does not in any way support a claim of misconduct. Instead, given the procedural history set out above, it is not remotely surprising the government would oppose, in the relevant time frame, yet another attempt on the part of Johnson to change counsel. Thus, as noted by the district court, this particular claim of misconduct is supported by nothing other than self-serving hearsay. The district court appropriately denied collateral relief on the claim.
For those reasons set out above, this court DENIES Johnson's request for a COA ...