United States v. Handy , 614 F. App'x 379 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSSeptember 4, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 15-3173
(D.C. Nos. 2:14-CV-02035-CM &
VERDALE HANDY, 2:09-CR-20046-CM-8)
(D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
A federal jury convicted Verdale Handy of conspiracy to distribute heroin
resulting in death and serious bodily injury, along with various other offenses.
After this court rejected Mr. Handy’s direct appeal, see United States v. Handy,
505 F. App’x 682 (10th Cir. 2012), he brought a 28 U.S.C. § 2255 motion
alleging ineffective assistance of counsel in that appeal. The district court denied
relief and declined to issue a certificate of appealability allowing him to challenge
its decision in this court. Mr. Handy now asks us to revisit that decision and
*
This order is not binding precedent except under the doctrines of law of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.
grant him a COA so he may challenge the district court’s resolution of his
ineffective assistance claim.
We may issue a COA only if the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where as here the
district court has rejected the constitutional claims on the merits, the petitioner
must show 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). Because Mr. Handy proceeds in this court pro se, we review his
pleading with special solicitude.
Even so, we cannot say a COA is warranted in this case. Strickland v.
Washington, 466 U.S. 668 (1984), requires a party alleging ineffective assistance
to show, among other things, that counsel’s performance was “objectively
unreasonable.” The district court held that Mr. Handy failed to establish so much
and we do not believe reasonable jurists would debate its conclusion. Mr. Handy
contends that his appellate counsel should have challenged the admission at trial
of certain statements made by his co-conspirators because the government failed
to prove by a preponderance of the evidence that a conspiracy ever existed
between them under the terms of United States v. James, 590 F.2d 575 (5th Cir.
1979). The district court, however, expressly found a conspiracy did exist during
a James hearing before trial. And the record includes a wealth of evidence to
support its conclusion: multiple residences used by the co-conspirators in concert
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to sell heroin, their standard pricing across residences, and customer referrals
between them. This in addition to the co-conspirators’ statements to Agent
Bennett and other government agents discussing Mr. Handy’s role in their mutual
organization. To be sure, Mr. Handy now attempts to challenge the reliability of
a slice of this evidence, in particular the statements made to Agent Bennett. But
there is so much of it that a preponderance of evidence suggesting a conspiracy
would remain even if Mr. Handy’s slice is excised and ignored. Given this and
like the district court, we cannot help but think counsel’s decision to abjure a
James argument on appeal was an understandable and reasonable tactical
decision. It is long settled that to perform effectively appellate counsel “need not
(and should not) raise every nonfrivolous claim.” Smith v. Robbins, 528 U.S.
259, 288 (2000).
The application for a COA is denied and the appeal is dismissed. Mr.
Handy was previously granted authority by the district court to proceed in forma
pauperis, and that authority extends to proceedings before this panel, so there is
no need for us to pass on his motion seeking the same relief from us.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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