(D.C. Nos. 1:07-CR-00089-TC-1 and 1:12-CV-00226-TC) (D. Utah)
Before GORSUCH, O'BRIEN, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
TERRENCE L. O'BRIEN UNITED STATES CIRCUIT JUDGE
Kim Davis Beckstrom, a federal prisoner, wants to appeal from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. His request for a certificate of appealability (COA) was denied by the district judge, prompting him to reapply in this Court. Because he has not "made a substantial showing of the denial of a constitutional right, " see 28 U.S.C. § 2253(c)(2), we too deny a COA.
Beckstrom was convicted by a jury of possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Because he had two prior felony drug convictions, he was sentenced to a mandatory sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A). We affirmed and the United States Supreme Court denied certiorari review. See United States v. Beckstrom, 647 F.3d 1012 (10th Cir.), cert. denied, 132 S.Ct. 827 (2011).
Beckstrom timely filed a pro se 28 U.S.C. § 2255 motion alleging ineffective assistance of trial counsel. According to his motion, trial counsel rejected a 15-year plea deal offer from the government without consulting him. In support of this claim, he relied on an e-mail he had received in response to a Freedom of Information Act (FOIA) request. This e-mail had been sent to the prosecuting attorney from his trial counsel and refers to "the plea offer" and Beckstrom's requests for new trial counsel and a continuance of the trial. (R. Vol. 1 at 69.)
The district judge appointed counsel and held an evidentiary hearing. The only issue was whether trial counsel failed to communicate a plea offer to Beckstrom. According to Beckstrom's testimony, trial counsel told him the government had offered him a 15-year plea deal which counsel refused because he had been unwilling in the past to accept any deal in excess of 30 months. His trial counsel, on the other hand, denied the existence of a 15-year plea deal or that she had rejected such offer without conveying it to Beckstrom. Trial counsel acknowledged her e-mail to the prosecuting attorney referred to "the plea offer." (R. Vol. 1 at 69.) But, she said, it was a "typo" and should have referred to "a plea offer." (R. Vol. 3 at 63.) In her testimony, the prosecuting attorney said the only plea deal offered was 20 years, which Beckstrom refused. The judge found Beckstrom's testimony unworthy of belief. She credited instead the testimony of his trial counsel and the prosecuting attorney. She denied the § 2255 motion and the subsequent request for a COA.
Inexplicably, the combined opening brief and request for a COA Beckstrom filed with this Court ignores the very object of his original § 2255 motion and the judge's resolution of that issue. He makes no argument concerning trial counsel's alleged failure to communicate with him before rejecting a 15-year plea deal offer. Instead, he raises two procedural issues. He has waived any complaints about counsel's alleged failure to communicate a plea offer to him. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (stating "the failure to raise an issue in an opening brief waives that issue") (quotations omitted). We now turn to the arguments he has presented.
The first is that the judge erred in denying his request to amend his § 2255 motion to include additional claims of ineffective assistance of counsel. These claims, which were raised outside the applicable one-year statute of limitations,  see 28 U.S.C. § 2255(f), concerned trial counsel's failure to move for the appointment of new counsel (and to inform the judge of Beckstrom's request), failure to seek a continuance of the trial so he could obtain new counsel, and her alleged disclosure of confidential attorney-client communications. He contends the new claims were timely because they were not discoverable until (at the earliest) February 2013 when he received the e-mail pursuant to his FOIA request and they related back to the date of the original motion under Fed.R.Civ.P. 15(c)(1)(B) ("An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading."). Second, Beckstrom faults the judge for not holding an evidentiary hearing to determine whether the prosecuting attorney knowingly misled the court as to the service of a subpoena.
A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate "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 (2000) (quotations omitted). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Neither argument Beckstrom now makes fairly questions whether "the sentence was imposed in violation of the Constitution or laws of the United States" as § 2255 requires. They only relate to rulings made in addressing the § 2255 motion itself. See United States v. Gordon, 172 F.3d 753, 754-55 (10th Cir. 1999) (a COA should only issue on claims asserting the denial of a constitutional right and therefore no COA could be issued on claims alleging a criminal rule violation). In any event the rulings were indisputably correct.
The judge refused Beckstrom's attempts to amend his § 2255 motion because the new claims were untimely-they were reasonably discoverable during trial in 2009 and did not relate back to the date of the original motion because they were based on facts differing in "time and type" from the original claim. See Mayle v. Felix, 545 U.S. 644, 650 (2005).
The judge did not address Beckstrom's request for an evidentiary hearing regarding service of the subpoena. But the request for a hearing related only to the credibility of the prosecutor's statement that no 15-year plea offer was made. Moreover, it was based only on a misstatement she may have made on a collateral matter.
We DENY a COA and DISMISS this matter. Beckstrom's request to proceed on appeal in forma pauperis or ifp is DENIED AS MOOT. The relevant statute, 28 U.S.C. § 1915(a), does not permit litigants to avoid payment of fees; only prepayment of fees may be excused. Since we have reached the merits of this matter, prepayment of fees is no longer an issue. Beckstrom is, nevertheless, ...