United States v. Hall , 605 F. App'x 766 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
May 27, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-4008
v. (D.C. Nos. 2:14-CV-00364-TS and
2:10-CR-01109-TS-1)
VIRGIL HALL, (D. Utah)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
Defendant-Appellant Virgil Hall, a federal inmate appearing pro se, seeks
to appeal from the district court’s denial of his motion to vacate, set aside, or
correct his sentence. 28 U.S.C. § 2255; 1 R. 126–48. To proceed on appeal, Mr.
Hall must obtain a certificate of appealability (“COA”) by making a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a
district court has rejected a petitioner’s constitutional claims on the merits, he
“must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Where a district court has dismissed a petition on
procedural grounds, he must show, “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. Because Mr. Hall has not made the
required showing, we deny a COA and dismiss the appeal.
On December 15, 2010, Mr. Hall was charged in a one-count indictment
alleging possession with intent to distribute 500 grams or more of cocaine. A
jury found Mr. Hall guilty, and he was sentenced to 120 months in custody and 60
months of supervised release. On direct appeal, Mr. Hall argued that the district
court erred by admitting improper evidence at trial. We disagreed and affirmed
his conviction. United States v. Hall, 508 F. App’x 776 (10th Cir.), cert. denied
133 S. Ct. 2841 (2013). Mr. Hall then filed a petition for a writ of mandamus
directing the district court clerk to provide him with original, true, and correct
copies of his indictment, complaint, and judgment, which we dismissed as
frivolous on September 4, 2013.
On May 12, 2014, Mr. Hall filed his § 2255 motion, asserting several
grounds for relief under the Fifth and Sixth Amendments, including ineffective
assistance of trial and appellate counsel, lack of standing and subject matter
jurisdiction, and violations of his rights to self-representation and to an open
court and public trial. The district court remarked that, because Mr. Hall had not
raised them on direct appeal, all of his claims were procedurally barred absent a
showing of cause and prejudice or a fundamental miscarriage of justice. Hall v.
-2-
United States, Civ. No. 2:14–CV–364 TS, Crim. No. 2:10–CR–1109 TS, 2014 WL
7391735, at *2 (D. Utah Dec. 29, 2014). The court noted that ineffective
assistance could furnish cause for Mr. Hall’s failure to raise the substantive
claims. Id. Of course, it is well established that a petitioner may bring claims of
ineffective assistance of counsel under § 2255 without a showing of cause and
prejudice or a fundamental miscarriage of justice. Massaro v. United States, 538
U.S. 500, 504–506 (2003); United States v. Galloway, 56 F.3d 1239, 1242–1243
(10th Cir. 1995) (en banc). Regardless, the district court carefully analyzed Mr.
Hall’s ineffective assistance claims and considered whether ineffective assistance
could provide cause for failure to raise his other substantive claims. The court
found all claims to be without merit. Hall, 2014 WL 7391735, at *2–12.
On appeal, Mr. Hall primarily argues the district court lacked jurisdiction
because his indictment and judgment were “facially invalid” in violation of his
Fifth Amendment right to due process of law. Pet. 3. He also argues ineffective
assistance of trial counsel resulted in a “dramatic increase in his mandatory
minimum sentence.” Id. at 4. We do not find the district court’s resolution of
Mr. Hall’s claims reasonably debatable. In particular, he has not shown that his
indictment and judgment were invalid, that the district court lacked jurisdiction,
or that his trial and appellate counsel were constitutionally ineffective under the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
-3-
We DENY Mr. Hall’s motion for a COA and DISMISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-