United States v. Neal , 601 F. App'x 693 ( 2015 )


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  •                                                                     FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    TENTH CIRCUIT                          February 24, 2015
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                              No. 14-1399
    (D.C. Nos. 1:14-CV-01071-WJM &
    v.                                                     1:11-CR-00163-WJM-1)
    (D. Colo.)
    SIR ALEXANDER NEAL,
    Defendant - Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
    Petitioner Sir Alexander Neal, a federal prisoner appearing pro se,1 seeks a
    certificate of appealability (“COA”) to challenge the district court’s denial of his 
    28 U.S.C. § 2255
     motion to vacate, set aside, or correct his sentence. See 
    28 U.S.C. § 2253
    (c)(1)(B) (requiring a COA to appeal an order denying a § 2255 petition). Mr.
    *This order is not binding precedent, except under the doctrines of law of the case,
    res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    1
    Because Mr. Neal is proceeding pro se, we construe his filings liberally. See
    Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007); see also United States v. Pinson, 
    584 F.3d 972
    , 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally;
    this rule of liberal construction stops, however, at the point at which we begin to serve as
    his advocate.”).
    Neal also requests leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction
    under 
    28 U.S.C. § 1291
    , we deny both requests and dismiss this matter.
    I. BACKGROUND
    A. Factual History
    On March 15, 2011, Denver Police Officer Jarrod Foust stopped a car after
    observing it make an illegal left-hand turn and noting its tinted windows, which he
    believed violated a city ordinance. While speaking with the vehicle’s driver, Officer
    Foust smelled marijuana and noticed a small bag on the back seat that appeared to
    contain marijuana and a foil package of rolling paper. A second officer—Officer Paul
    Von Feldt—arrived and spoke with Mr. Neal, who was sitting in the passenger seat.
    After running Mr. Neal’s information, the officers discovered his extensive criminal
    history, including felony convictions.
    Upon learning neither of the passengers had a medical marijuana license, the
    officers decided to search the car, while Mr. Neal remained inside. During the search,
    Officer Von Feldt saw a firearm underneath Mr. Neal’s seat. He notified Officer Foust of
    the firearm. While the officers were speaking, Mr. Neal bent over in his seat. The
    officers immediately removed Mr. Neal from the vehicle and found the firearm
    underneath the driver’s seat.
    B. Procedural History
    Mr. Neal was indicted on one count of being a felon in possession of a firearm
    under 
    18 U.S.C. § 922
    (g)(1). He moved to suppress the gun evidence, arguing the traffic
    -2-
    stop violated the Fourth Amendment. The district court denied the motion. A jury
    convicted Mr. Neal of the offense, and the court sentenced him to 102 months in prison
    and three years of supervised release. See United States v. Neal, 505 F. App’x 755, 756
    (10th Cir. 2012) (unpublished).
    Mr. Neal appealed, arguing his sentence was too long because one of his predicate
    offenses was not a crime of violence under United States Sentencing Guidelines
    § 4B1.2(a). Id. This court affirmed. Id. at 758.
    Mr. Neal next moved for § 2255 relief, raising five claims: (1) government
    destruction of a traffic camera tape of the stop; (2) prosecutorial misconduct for failure to
    obtain and disclose the tape; (3) selective law enforcement based on a racially motivated
    stop; (4) false testimony from a government witness; and (5) ineffective assistance of
    counsel.
    These claims stemmed from his contention that a traffic monitoring camera
    recorded the incident from a block away and would have shown the driver of the car did
    not violate traffic laws and Officer Foust could not have seen the windows of the car. He
    argued the police should have preserved and produced the tape to him but allowed it to be
    recycled after 30 days. He also argued his counsel was ineffective because he did not try
    to obtain it.
    The district court addressed claims (1) and (5) on the merits. It did so by
    considering three ineffective assistance claims—trial counsel’s failure to (i) obtain the
    traffic camera tape, (ii) argue the government destroyed the tape, and (iii) contest the
    -3-
    constitutionality of Mr. Neal’s seizure. The district court denied relief, concluding Mr.
    Neal had not shown either deficient performance or prejudice under Strickland v.
    Washington, 
    466 U.S. 668
    , 687-88 (1984). Mr. Neal has abandoned these claims here.
    The district court also rejected claims (2), (3), and (4) as procedurally barred
    because Mr. Neal did not show why he failed to raise them on direct appeal. The court
    said his cursory reference to ineffective assistance did not show cause for failure to raise
    these issues and his petition lacked any explanation of how failure to appeal these issues
    prejudiced him. Mr. Neal limits his request for COA to these three claims.
    II. DISCUSSION
    Mr. Neal now seeks a COA and argues the district court erred because it should
    have analyzed the claims for prosecutorial misconduct, selective law enforcement, and
    false testimony as ineffective assistance of counsel claims.
    To consider Mr. Neal’s appeal from the district court’s denial of his § 2255
    petition, we must grant a COA. See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003).
    Where, as here, the district court dismissed the petition on procedural grounds, we will
    grant a COA only if the petitioner can demonstrate both “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.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000).
    We have examined Mr. Neal’s § 2255 motion and conclude, as the district court
    did, that his fleeting reference to “all claims Defendant asserts are due to the ineffective
    -4-
    assistance of counsel” and his failure to discuss prejudice do not overcome his failure to
    appeal the issues on which he now seeks a COA. No reasonable jurist could decide these
    issues can escape procedural bar from § 2255 review.
    III. CONCLUSION
    We deny Mr. Neal’s request for a COA, deny his request to proceed ifp, and
    dismiss this matter.
    ENTERED FOR THE COURT
    Scott M. Matheson, Jr.
    Circuit Judge
    -5-
    

Document Info

Docket Number: 14-1399

Citation Numbers: 601 F. App'x 693

Judges: Matheson, Murphy, Phillips

Filed Date: 2/24/2015

Precedential Status: Non-Precedential

Modified Date: 10/19/2024