United States v. Webb ( 2022 )


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  • Appellate Case: 21-3091     Document: 010110756037      Date Filed: 10/20/2022   Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                        Tenth Circuit
    FOR THE TENTH CIRCUIT                       October 20, 2022
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                  No. 21-3091
    (D.C. Nos. 5:11-CR-40078-JAR-1,
    VIROK D. WEBB,                              5:17-CV-04040-JAR-JPO &
    2:19-CV-02491-JAR-JPO)
    Defendant - Appellant.                           (D. Kan.)
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before TYMKOVICH, MATHESON, and EID, Circuit Judges.
    _________________________________
    Virok D. Webb appeals the district court’s denial of leave to amend his
    
    28 U.S.C. § 2255
     motion. The district court concluded that Webb’s proposed claim
    was untimely and that amendment was futile because he lacked standing to bring his
    proposed claim. We granted a certificate of appealability (COA) on the timeliness
    and standing issues. Exercising jurisdiction under 
    28 U.S.C. §§ 1291
     and 2253(c),
    we affirm the district court’s judgment on alternative grounds. Because we affirm on
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    Appellate Case: 21-3091    Document: 010110756037        Date Filed: 10/20/2022    Page: 2
    alternative grounds, we do not consider or address the district court’s ruling that
    Webb lacks standing to bring his proposed Sixth Amendment claim. We affirm the
    district court’s denial of leave to amend as futile because Webb’s proposed Sixth
    Amendment claim is not cognizable in a federal habeas proceeding. This conclusion
    obviates any need to consider whether Webb’s proposed claim was timely under
    § 2255(f)(4) or any question of standing.
    I
    Webb was charged in a three-count superseding indictment with conspiracy to
    distribute crack cocaine, conspiracy to distribute powder cocaine, and murder to
    prevent a person from providing information concerning a federal crime to a law
    enforcement officer. He pleaded guilty to the crack-conspiracy count, and the
    government dismissed the other conspiracy and murder counts. Webb later sought to
    withdraw his guilty plea, but the district court denied his request. On August 27,
    2015, the district court entered a judgment of conviction and sentenced Webb to 360
    months in prison followed by 10 years of supervised release. Webb appealed the
    denial of his motion to withdraw his guilty plea, and on June 2, 2016, we affirmed.
    See United States v. Webb, 651 F. App’x 740, 741 (10th Cir. 2016).
    Webb’s conviction became final 90 days later, on August 31, 2016, when the
    time for him to seek certiorari review expired. See S. Ct. R. 13.1; United States v.
    Prows, 
    448 F.3d 1223
    , 1227 (10th Cir. 2006). He had one year from that date, until
    August 31, 2017, to file a § 2255 motion. See 
    28 U.S.C. § 2255
    (f)(1). On June 5,
    2
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    2017, Webb timely filed a pro se § 2255 motion, claiming his trial and appellate
    counsel rendered ineffective assistance.
    Meanwhile, in separate judicial proceedings (“the Black litigation”), the
    district court learned that the government had accessed recorded conversations
    between attorneys and their clients confined at the same prison where Webb was
    incarcerated. See United States v. Carter, 
    995 F.3d 1222
    , 1224 (10th Cir. 2021). The
    district court conducted an extensive investigation in the Black litigation and directed
    the government to produce all recordings in its possession. See 
    id.
     The court also
    entered a standing order appointing the Federal Public Defender (FPD) to represent
    any defendant from the District of Kansas with an alleged Sixth Amendment
    violation stemming from government access to recordings of attorney-client
    conversations. See Standing Order No. 18-3 (D. Kan. July 17, 2018).
    On July 9, 2019—more than two years after he filed his pro se § 2255
    motion—Webb moved to amend his § 2255 motion to add a Sixth Amendment claim
    based on the government obtaining recordings of his calls with his attorney while at
    the prison. See Shillinger v. Haworth, 
    70 F.3d 1132
    , 1142 (10th Cir. 1995)
    (“[A]bsent a countervailing state interest,” “a prosecutor’s intentional intrusion into
    the attorney-client-relationship constitutes . . . a per se violation of the Sixth
    Amendment.”). He was represented by the FPD, and his original § 2255 motion was
    still pending with the district court. After Webb renewed his motion to amend, the
    district court consolidated his case with numerous other § 2255 motions raising
    similar Sixth Amendment claims arising out of the government’s access to the
    3
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    recordings. Aplt. Suppl. R. at 1488-89; In re CCA Recordings 2255 Litig. v. United
    States, No. 19-cv-2491-JAR-JPO (D. Kan. Aug. 21, 2019), ECF No. 1 at 3-4
    (including Webb’s case in the consolidated § 2255 proceedings).1
    The district court denied Webb leave to amend. The court concluded that his
    proposed Sixth Amendment claim was untimely because it was filed beyond the
    one-year deadline of § 2255(f)(1), and it did not relate back to his original filing date
    because it asserted a new Sixth Amendment claim that was separate from and
    unrelated to the ineffective-assistance-of-counsel claims presented in his initial
    motion, see United States v. Roe, 
    913 F.3d 1285
    , 1297 (10th Cir. 2019) (explaining
    that proposed amended claims may relate “back only when the claims added by
    amendment arise from the same core facts as the timely filed claims, and not when
    the new claims depend upon events separate in both time and type from the originally
    raised episodes” (internal quotation marks omitted)). The court also ruled that
    amendment would be futile because the Sixth Amendment claim was subject to
    dismissal for lack of standing. The court reasoned that Webb already had been
    convicted and sentenced before the government obtained the recordings of his calls in
    May 2016, so he could not establish that his confinement was caused by the alleged
    1
    The parties move to supplement the record on appeal with numerous public
    court filings from the Black litigation, the consolidated § 2255 proceedings, and other
    proceedings. We construe the motions as requesting that we take judicial notice of
    the relevant material, and so construed, we grant the motions. For ease of reference,
    we cite those documents as the parties have presented them to us in their respective
    supplemental appendices.
    4
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    Sixth Amendment violation, characterizing its holding as a lack of standing. The
    district court denied a COA, and Webb sought to appeal.2
    Webb filed an application in this court for a COA, which we granted as to two
    issues: whether the proposed amendment was timely under § 2255(f)(4),3 and
    whether Webb would have standing to raise his proposed amended claim.4
    Having now carefully considered the parties’ arguments, the district court’s
    decisions in both this case and in the Black litigation, as well as the relevant legal
    authorities, we find it unnecessary to address either of the two issues upon which this
    court granted a COA. Instead, for the reasons stated below, we affirm the denial of
    Webb’s motion to amend on the alternative ground that it would have been futile to
    allow him to amend because his proposed claim is not cognizable in a federal habeas
    proceeding. See Richison v. Ernest Grp., Inc., 
    634 F.3d 1123
    , 1130 (10th Cir. 2011)
    2
    The district court denied the balance of Webb’s § 2255 motion; those issues
    are not before us.
    3
    Under § 2255(f)(4), the one-year limitation period for filing a § 2255 motion
    runs from “the date on which the facts supporting the claim or claims presented could
    have been discovered through the exercise of due diligence.”
    4
    We also granted a COA to consider whether the proposed amendment was
    timely under § 2255(f)(2), which delays accrual of the one-year limitation period for
    filing a § 2255 motion until “the date on which the impediment to making a motion
    created by governmental action in violation of the Constitution or laws of the United
    States is removed, if the movant was prevented from making a motion by such
    governmental action.” In his reply brief, Webb abandons any argument under
    § 2255(f)(2), see Reply Br. at 8 n.2, so we do not consider any issue related to a
    government-imposed impediment to filing.
    5
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    (“[W]e may affirm on any basis supported by the record, even if it requires ruling on
    arguments not reached by the district court or even presented to us on appeal.”).
    II
    “Pursuant to the provisions of Fed. R. Civ. P. 15(a)(2), a movant may file an
    amended § 2255 motion at any time during post-conviction proceedings with leave of
    court.” Roe, 913 F.3d at 1296.5 However, “the district court may dismiss without
    granting leave to amend when it would be futile to allow the plaintiff an opportunity
    to amend his [motion].” Brereton v. Bountiful City Corp., 
    434 F.3d 1213
    , 1219
    (10th Cir. 2006).
    Webb claims the government obtained the recordings of his calls on May 20,
    May 24, and May 25, 2016. See Aplt. Opening Br. at 5; see also Aplt. Suppl. R. at
    52-57 (emails with links to call recordings). A supplemental status report filed in the
    Black litigation confirms that “no [other] calls or derivative materials were located
    for Webb.” Aplt. Suppl. R. at 1665. And the FPD conceded that, after reviewing the
    relevant evidence, it could not establish that anyone had accessed the recordings
    before Webb was sentenced on August 27, 2015. See 
    id. at 1283
    . Under these
    circumstances, where the alleged Sixth Amendment violation is predicated on events
    that occurred after he was convicted and sentenced, Webb’s claim is not cognizable
    in a federal habeas proceeding. See Sellers v. Ward, 
    135 F.3d 1333
    , 1339 (10th Cir.
    1998) (holding petitioner’s claim was not cognizable in a federal habeas proceeding
    5
    Federal Rule of Civil Procedure 15 applies to § 2255 motions. See Roe,
    913 F.3d at 1296 n.14.
    6
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    because it did not focus on “the judgment which provides the basis for his
    incarceration” or “revolve [around] trial error but about matters that occurred
    subsequently”); see also United States v. Dago, 
    441 F.3d 1238
    , 1248-49 & n.5
    (10th Cir. 2006) (holding claim based on delay in post-conviction proceedings did
    not warrant relief in federal habeas, which is “limited to examining the events that
    occurred in the proceedings leading up to the petitioner’s conviction”); Richie v.
    Sirmons, 
    563 F. Supp. 2d 1250
    , 1298-99 (N.D. Okla. 2008) (holding claim alleging
    constitutional violation that occurred during petitioner’s direct appeal was not
    cognizable in federal habeas proceedings because it challenged the constitutionality
    of the appellate court’s decision, not “the judgment which provides the basis for his
    incarceration”). Webb had been convicted and sentenced by the time the alleged
    Sixth Amendment violation occurred. As such, his proposed claim would not have
    been cognizable in a habeas proceeding, it would have been subject to dismissal, and
    thus amendment would have been futile. Accordingly, we affirm the denial of
    Webb’s motion to amend on this alternative ground, and we do not reach any other
    issues.
    III
    The district court’s judgment is affirmed. The parties’ motions to supplement
    the record, which we construe as motions to take judicial notice, are granted.
    Entered for the Court
    Timothy M. Tymkovich
    Circuit Judge
    7