Appeal from the United States District Court for the Western District of Oklahoma. (D.C. Nos. 5:14-CV-00407-R and 5:12-CR-00012-R-1).
Samuel Rodriguez, Pro se, Defendant-Appellant.
Robert Donald Gifford, II, United States Attorney's Office, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
Mr. Samuel Rodriguez pleaded guilty to the distribution of five grams or more of methamphetamine. The district court accepted the plea and sentenced Mr. Rodriguez. In determining the sentence, the court applied an enhancement based on a finding that Mr. Rodriguez was a career offender because he had at least two earlier felony convictions for a crime of violence or a controlled substance. See U.S. Sentencing Guidelines Manual § 4B1.1(a). One of these convictions involved simple assault under Texas Penal Code § 22.01. The parties disagree on whether the assault conviction involved a crime of violence.
In an earlier appeal, Mr. Rodriguez's attorney argued that the district court should not have considered the Texas conviction a crime of violence. A panel of this court rejected the argument, affirming the conviction.
Mr. Rodriguez then sought collateral relief, claiming that his attorney had mishandled the issue both at sentencing and in the direct appeal. The district court recharacterized the request as a motion to vacate the sentence under 28 U.S.C. § 2255 and denied relief.
Mr. Rodriguez asks us for a certificate of appealability so that he can appeal the denial of relief under § 2255. With this request, Mr. Rodriguez also asks for leave to amend the § 2255 motion and to proceed in forma pauperis. We deny the request for a certificate of appealability and dismiss the appeal. This dismissal moots Mr. Rodriguez's related requests for leave to amend and leave to proceed in forma pauperis.
I. Simple Assault Under the Texas Statute: Violent or Nonviolent?
Underlying the claim is Mr. Rodriguez's belief that his Texas assault conviction did not involve a crime of violence under the federal sentencing guidelines.
In the prior appeal, we held that a crime would be considered violent if it involved intent, but not recklessness. United States v. Rodriguez, 528 F.App'x 921, 924 (10th Cir. 2013) (unpublished). Mr. Rodriguez does not quarrel with this conclusion.
Instead, he argues that the assault did not necessarily constitute a crime of violence because the crime could have been triggered by recklessness. This much of the argument is correct, for the Texas statute provides three different mental states for an assault. One of them is recklessness, and another is intentional conduct. See Tex. Penal Code § 22.01(a)(1).
The resulting question is which mental state was required in Mr. Rodriguez's criminal case. If it was intentional conduct, the offense would have qualified as a crime of violence; if the required mental state was recklessness, the offense would not have qualified as a crime of violence. And if the offense involved a crime of violence, enhancement of the sentence would have been appropriate; if the offense did not involve a crime of violence, enhancement would have been inappropriate.
II. The Prior Judicial Decisions and the Claims
The district court concluded at sentencing that the Texas conviction involved a crime of violence. On direct appeal, we upheld that ruling because Texas court records showed that Mr. Rodriguez had pleaded guilty to intentional conduct, as well as recklessness. Id. at 923-27.
In the proposed appeal involving his § 2255 motion, Mr. Rodriguez alleges mistakes by the prior Tenth Circuit panel, the district court, and his attorney handling the sentencing and direct appeal.
III. Need for a Certificate of Appealability
A certificate of appealability is necessary for Mr. Rodriguez to appeal. 28 U.S.C. § 2253(c)(1)(B). We will issue a certificate only when the applicant makes " a substantial showing of the denial of a
constitutional right." Id. at § 2253(c)(2). This showing requires a demonstration 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. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), superseded by statute, Antiterrorism and Effective Death Penalty Act of 1996, No. 104-132, 110 Stat. 1214,, as recognized in Slack, 529 U.S. at 483-84). Under this test, Mr. Rodriguez must show " that the district court's resolution of the claim was either 'debatable or wrong.'" Laurson v. Leyba, 507 F.3d 1230, 1231 (10th Cir. 2007) (quoting Slack, 529 U.S. at 484). We conclude that no reasonable jurist could regard the merits of the § 2255 motion as debatable or wrong.
IV. Alleged Mistakes in Our Decision in the Direct Appeal
Mr. Rodriguez argues in part that we should reverse the denial of § 2255 relief because we mistakenly decided the direct appeal. This argument has two shortcomings: The claim was not part of the § 2255 motion, and our decision in the direct appeal is law of the case. For both reasons, any reasonable jurist would recognize that we could not reverse the district court's denial of relief under § 2255 even if we disagreed with the panel's decision in the direct appeal.
V. Alleged Mistake by the District Court in Denying § 2255 Relief
In denying § 2255 relief, the federal district court said that Mr. Rodriguez could not relitigate classification of simple assault as a crime of violence because we had already decided the issue in the direct appeal. R. at 124. For this statement, the district court cited United States v. Fennell, 207 F.App'x 916, 919 (10th Cir. 2006). Id. Mr. Rodriguez argues that reliance on Fennell was misguided because he had not previously alleged ineffective assistance of counsel.
We believe Mr. Rodriguez misunderstood the district court's citation of Fennell. The district court did not question whether Mr. Rodriguez can allege ineffective assistance of counsel under § 2255. The court was simply expressing its belief that Mr. Rodriguez was trying to relitigate an issue already decided. He was. As noted above, Mr. Rodriguez is seeking a certificate of appealability in part so that he can argue that the panel had incorrectly decided his direct appeal. In these ...