United States v. Twitty ( 2023 )

Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1182
(D.C. No. 1:22-CV-00393-RBJ & D.C. No.
ANDRE J. TWITTY, 1:19-CR-00344-RBJ-1)
(D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Andre J. Twitty, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s order denying his 28 U.S.C. § 2255motion. As we explain, we deny Mr. Twitty’s COA request and dismiss the matter.
I. Background
While serving a sentence in federal prison for making threats, Mr. Twitty
threatened a Bureau of Prisons disciplinary officer. He was indicted for violating
Colorado’s stalking statute, Colo. Rev. Stat. § 18-3-602(1)(b), as assimilated by the
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 2
Assimilative Crimes Act (ACA), 18 U.S.C. § 13. 1 Mr. Twitty moved to dismiss the
indictment, arguing the Colorado stalking statute was unconstitutional because it did not
contain a mens rea requirement. Because the government had included an intent
requirement in the indictment, however, the district court determined it should interpret
the Colorado statute as having a constitutionally sufficient mens rea requirement. The
case proceeded to trial, and the jury was instructed the government had to prove
Mr. Twitty intended the recipient to feel threatened. The jury found Mr. Twitty guilty.
After the jury verdict, Mr. Twitty moved for a new trial. He argued the district
court lacked subject matter jurisdiction because 18 U.S.C. § 2261A punished
approximately the same conduct as the Colorado statute, and so the ACA did not properly
assimilate the Colorado statute. He asserted this warranted a new trial under § 2261A.
The district court denied the motion.
Mr. Twitty then moved to dismiss the indictment, arguing 18 U.S.C.
§ 115(a)(1)(B) also punished approximately the same conduct as the Colorado statute.
He asserted the trial court did not have subject matter jurisdiction because the ACA did
not apply to Mr. Twitty and his alleged conduct. The district court rejected Mr. Twitty’s
characterization of his argument as jurisdictional. The court denied the motion,
1
As the Supreme Court explained in Lewis v. United States, 523 U.S. 155, 160
(1998), “[t]he ACA’s basic purpose is one of borrowing state law to fill gaps in the
federal criminal law that applies on federal enclaves.” The Court further explained that
the ACA does “not apply where both state and federal statutes seek to punish
approximately the same wrongful behavior.” Id. at 165.
2
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 3
concluding it presented a non-jurisdictional challenge that the indictment was defective
and should have been raised pretrial.
The district court entered judgment, sentencing Mr. Twitty to 60 months in prison
and a three-year term of supervised release. He appealed his conviction, arguing, among
other things, that the ACA did not properly assimilate the Colorado statute, and the
district court erred in denying his motions asserting improper assimilation. We
determined that “[b]ecause the basis for [Mr. Twitty’s] motion—improper assimilation—
is non-jurisdictional, existed pretrial, and the district court could have resolved the
motion without a trial on the merits, [he] had to make his motion pretrial.” United States
v. Twitty, 859 F. App’x 310, 313 (10th Cir.), cert. denied, 142 S. Ct. 323 (2021). We also
explained that—unless he could show good cause for not raising this
improper-assimilation argument pretrial—we could not review his challenge. Id.Because he did not attempt to show good cause for failing to make this argument, we
affirmed the district court’s denial of his post-trial motions and affirmed Mr. Twitty’s
conviction. 2 Id. at 314.
Mr. Twitty then filed a pro se § 2255 motion. He initially raised seven issues, but
he later filed an “ADDENDUM” explaining he “would like to simplify his argument.”
R., Vol. I at 118. He stated: “The sole issue is whether the . . . [ACA] . . . precludes the
adoption of a state statute, where both State and Federal statutes seek to punish
2
We also rejected Mr. Twitty’s other appellate arguments, which are not relevant
to this proceeding.
3
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 4
approximately the same wrongful behavior.” Id. (capitalization corrected and brackets,
ellipsis, and internal quotation marks omitted).
Construing the § 2255 motion and addendum liberally, the district court
determined Mr. Twitty was claiming counsel was ineffective for failing to raise the
argument in district court that he was now identifying as the sole issue in his § 2255
motion.
Regarding the first issue, the district court explained Mr. Twitty had raised that
argument in his direct appeal and “[a]n argument that was raised in a direct appeal cannot
again be made in a § 2255 motion to vacate.” Prelim. Suppl. R. at 5 (citing United States
v. Warner, 23 F.3d 287, 291 (10th Cir. 1994)). As for the second issue, the district court
concluded Mr. Twitty had not met his burden of showing either his trial counsel’s failure
to raise the ACA argument in district court constituted deficient performance or had
counsel raised the argument, the outcome would have been different. The district court
therefore denied the § 2255 motion.
Mr. Twitty now seeks a COA to appeal the district court’s order denying relief
under § 2255.
II. Discussion
“The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,
1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, Mr. Twitty
must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2).
For claims the district court addresses on the merits, he must show “reasonable jurists
4
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 5
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For claims the district court
resolves on a procedural ground, he must show “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 reasons would find it debatable whether the district court was correct in
its procedural ruling.” Id.In his COA brief, Mr. Twitty argues: (1) no jurisdiction existed in the trial court
because 18 U.S.C. § 115 barred the assimilation of the Colorado state statute; (2) trial
counsel was ineffective for failing to make a pretrial argument about improper
assimilation; and (3) the attorneys for the government committed fraud on the court
during the motions 3 hearing when they stated that the only way to charge him was under
the ACA.
We begin with Mr. Twitty’s fraud-on-the court argument. Mr. Twitty did not raise
this argument in his § 2255 motion or addendum nor did he assert he was unable to do so.
Accordingly, “we adhere to our general rule against considering issues for the first time
on appeal” and decline to address this newly raised argument. United States v. Viera,
674 F.3d 1214, 1220 (10th Cir. 2012) (declining to consider arguments for COA that pro
se applicant failed to present in district court).
Next, we turn to Mr. Twitty’s improper-assimilation argument. The district court
resolved this issue by explaining Mr. Twitty had raised it in his direct appeal and
3
Mr. Twitty does not identify the date of the motions hearing, but the only
motions hearing listed on the docket occurred before trial on November 1, 2019.
5
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 6
therefore he could not raise it again in his § 2255 motion. Mr. Twitty argues the merits of
his improper-assimilation argument again and does not address the district court’s
procedural ruling. Because he fails to challenge that ruling, he necessarily fails to show
that reasonable jurists could debate it. We therefore deny his request for a COA on this
issue.
Finally, we consider Mr. Twitty’s argument that his counsel was ineffective for
failing to raise the improper-assimilation argument in a pretrial motion. He contends that
if his attorney had filed the proper pretrial motion to dismiss, there is a reasonable
probability that the outcome would have been different.
To establish ineffective assistance of counsel, a defendant must meet the
two-prong test the Supreme Court announced in Strickland v. Washington,
466 U.S. 668 (1984). See Meadows v. Lind, 996 F.3d 1067, 1074 (10th Cir. 2021).
“First, the defendant must show his counsel’s performance fell ‘below an objective
standard of reasonableness’ and, second, ‘the deficient performance prejudiced the
defense.’” Id. (quoting Strickland, 466 U.S. at 687-88). “If the defendant cannot
establish either of these prongs, his ineffective-assistance claim fails.” Id.The district court concluded Mr. Twitty failed to make a showing on both prongs
of the Strickland test. Regarding the first prong of the Strickland test, the district court
explained that counsel moved pretrial to dismiss the indictment on the ground that the
Colorado statute was unconstitutional because it did not require proof of mens rea, which
was an argument based on the Supreme Court’s decision in Elonis v. United States,
575 U.S. 723 (2015). The district court further explained that “counsel’s argument was a
6
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 7
good one” and the court “agreed with it.” Prelim. Suppl. R. at 5-6. But the district court
declined to declare the statute unconstitutional and instead resolved the issue by
interpreting the state statute to include a mens rea requirement and instructing the jury
accordingly. The court concluded counsel’s decision to proceed with this argument
pretrial, rather than an improper-assimilation argument, was a strategic choice and not
deficient performance. 4
As for the second prong, the district court determined “Mr. Twitty similarly failed
to carry his burden . . . of showing that there is a reasonable probability that had his
lawyer made the assimilation argument, the outcome of the case would be different.” Id.
at 6.
Recall, if the defendant cannot establish either Strickland prong, his claim for
ineffective assistance of counsel must fail. See Meadows, 996 F.3d at 1074; see also
Sumpter v. Kansas, 56 F.4th 871, 883 (10th Cir. 2022) (“[The] two [Strickland] prongs
may be addressed in any order, and failure to satisfy either is dispositive.” (internal
quotation marks omitted)). As we explain below, because Mr. Twitty has not met his
burden of showing the district court’s decision on the first Strickland prong was
reasonably debatable, we need not address the second prong. Cf. Strickland, 466 U.S. at
697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to
4
The court also noted that Mr. Twitty had succeeded in having a pro se petition
for writ of certiorari granted and another one of his convictions vacated based on an
Elonis argument.
7
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 8
address both components of the inquiry if the defendant makes an insufficient showing
on one.”).
In his COA application, Mr. Twitty fails to address the district court’s reasoning
on the first Strickland prong that his counsel made a strategic choice to make the Elonis
argument in the pretrial motion to dismiss and therefore counsel’s performance was not
deficient. Mr. Twitty simply makes the conclusory assertion that “had the trial attorney
filed the proper pretrial motion to dismiss . . . there is a reasonable probability that the
trial would not have taken place.” COA App. at 3. Mr. Twitty has failed to address the
basis for the district court’s conclusion that his counsel’s performance was not deficient
and thus cannot show reasonable jurists would find the district court’s assessment of his
ineffective assistance of counsel claim debatable or wrong. Cf. Nixon v. City & Cnty. of
Denver, 784 F.3d 1364, 1369 (10th Cir. 2015) (affirming district court’s decision where
the “opening brief contain[ed] nary a word to challenge the basis of” that decision).
III. Conclusion
We deny a COA and dismiss this matter. We grant Mr. Twitty’s motion for leave
to proceed on appeal without prepayment of costs or fees. We also grant Mr. Twitty’s
motions to supplement his COA application, 5 but we deny as moot his requests for
5
We have considered the supplements to Mr. Twitty’s COA application, but they
do not alter our analysis. Both supplements reargue the merits of Mr. Twitty’s
improper-assimilation argument, which he previously raised on direct appeal, see Twitty,
859 F. App’x at 312-14. As part of his improper-assimilation argument, Mr. Twitty now
cites United States v. Harris, 10 F.4th 1005 (10th Cir. 2021), which he suggests
represents a change in law in this circuit. In Harris, this court reversed on direct appeal
the district court’s denial of a pretrial motion to dismiss, agreeing with the defendant that
a Wyoming assault statute should not have been assimilated through the ACA. Id. at
8
Appellate Case: 22-1182 Document: 010110815122 Date Filed: 02/21/2023 Page: 9
release pending appeal contained in those motions.
Entered for the Court
Veronica S. Rossman
Circuit Judge
1008, 1009. But Harris involved different factual circumstances, different state and
federal statutes, and a different procedural posture than Mr. Twitty’s case, and it does not
impact his entitlement to a COA. As discussed, the district court determined Mr. Twitty
could not raise his improper-assimilation argument again in his § 2255 motion—a
determination he has not challenged in his COA application. And, although he continues
to characterize his argument as jurisdictional in nature, this court previously concluded
that his improper-assimilation argument “did not present a jurisdictional issue.” Twitty,
859 F. App’x at 313.
9