United States v. Lee , 599 F. App'x 839 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
April 8, 2015
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-8055
(D.C. Nos. 2:12-CV-00039-NDF and
RANDY LEE, 1:09-CR-00232-ABJ-1)
(D. Wyo.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Appellant seeks a certificate of appealability to appeal the district court’s denial of
his 28 U.S.C. § 2255 habeas petition.
Following a jury trial, Appellant was convicted in federal court on several charges
arising out of his participation in a scheme to roll back odometers on vehicles sold
through his family’s used car dealership. We affirmed his convictions and sentence on
direct appeal. United States v. Lee, 401 F. App’x 336 (10th Cir. 2010). Appellant then
filed the instant § 2255 petition, in which he mainly raised claims of ineffective assistance
*
This order is not binding precedent except under the doctrines of law of the case,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.
of trial counsel. The district court concluded that he was not entitled to relief on any of
his claims and denied his habeas petition.
Appellant seeks a certificate of appealabilty to appeal the dismissal of two of his
ineffective assistance claims: (1) that trial counsel should have raised claims of
vindictive and/or selective prosecution; and (2) that trial counsel should have inquired
further or requested a juror replacement when one of the jurors informed the court mid-
trial that he had worked with the government’s handwriting expert at some point and had
known him for years.
We conclude that reasonable jurists would not debate the district court’s denial of
either these claims. For substantially the same reasons given by the district court, we are
convinced Appellant has not alleged facts which would give rise to a viable claim of
vindictive or selective prosecution, much less shown that counsel was ineffective for
failing to raise such a claim.
As for Appellant’s habeas claim relating to the possible juror bias issue, we have
reviewed not only the habeas appendix Appellant submitted on appeal but also the
pertinent trial transcripts from Appellant’s underlying criminal case.1 Based on this
review, we first note the record does not support Appellant’s allegation that the juror was
dishonest during voir dire. Rather, the record indicates that the juror did not realize he
1
“[F]ederal courts, in appropriate circumstances, may take notice of proceedings
in other courts, both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.” St. Louis Baptist Temple v. FDIC, 605 F.2d
1169, 1172 (10th Cir. 1979).
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knew the expert, whose full name was not provided at voir dire, until the expert began to
testify. Our review also persuades us that Appellant has not met his burden of showing
that trial counsel provided constitutionally ineffective representation by failing to request
a replacement or inquire further regarding the juror’s acquaintance with the expert. At
trial, counsel’s defense strategy was not to controvert the expert’s testimony that
Appellant had signed various title documents, but rather to argue that Appellant had
signed these documents without realizing or knowing the odometer readings on the
documents were incorrect.2 In light of the uncontroversial nature of the expert’s
testimony, we are not persuaded the juror’s acquaintance with this witness gave rise to
such an implication of prejudicial bias that counsel was constitutionally ineffective for
failing to inquire further or request replacement of the juror. See Hughes v. United States,
258 F.3d 453, 458 (6th Cir. 2001) (“Petitioner’s claim of ineffective assistance of counsel
is grounded in the claim that counsel failed to strike a biased juror. To maintain a claim
that a biased juror prejudiced him, however, Petitioner must show that the juror was
actually biased against him.” (internal quotation marks and brackets omitted)); see also
United States v. Brooks, 569 F.3d 1284, 1289 (10th Cir. 2009) (describing the very
limited circumstances in which we will find actual or implied juror bias, none of which
appear in this case).
2
A different handwriting expert testified for the defense that Appellant’s signature
had been forged on certain other documents. However, the defense expert did not review
or dispute the government expert’s conclusions regarding the documents he testified had
been signed by Appellant.
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Finally, because Appellant has not “articulated facts which, if proven, would
entitle him to relief,” United States v. Weeks, 653 F.3d 1188, 1200 (10th Cir. 2011), we
reject Appellant’s argument that the district court erred in denying his habeas petition
without holding an evidentiary hearing.
We therefore DENY Appellant’s request for a certificate of appealability and
DISMISS the appeal.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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