United States v. Bedford , 354 F. App'x 319 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 27, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 09-3271
v. (D.C. No. 6:09-CV-01172-MLB)
(D.C. No. 6:07-CR-10094-MLB-1)
MALCOM T. BEDFORD, (D. Kan.)
Defendant–Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Malcolm T. Bedford, a federal prisoner proceeding pro se,1 requests a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion
seeking an evidentiary hearing. Because reasonable jurists would agree that the
performance of Bedford’s counsel did not fall below an objective standard of
reasonableness, we deny Bedford’s request for a COA and dismiss the appeal.
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
Because Bedford proceeds pro se, we liberally construe his application for a
COA. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
I
In December 2007, Bedford was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C § 922(g)(1) in the United States District Court for the
District of Kansas. Bedford appealed his conviction to this court, arguing that the
evidence was not sufficient for a reasonable jury to find him guilty. In December 2008,
this court rejected Bedford’s claim and upheld his conviction.
Bedford then brought a motion requesting an evidentiary hearing pursuant to 28
U.S.C. § 2255 on the ground that his trial counsel was ineffective. He argued his trial
counsel was constitutionally deficient for two reasons: (1) counsel stipulated to facts that
established an element of the crime for which Bedford was convicted; and (2) counsel
failed to challenge the court’s instructions to the jury or propose alternate instructions. In
July 2009, the district court denied the motion on the ground that the claims “fail[ed] for
lack of support in the record.” It subsequently denied his request for a certificate of
appealability. Bedford now appeals.2
II
Because the district court denied Bedford’s request for a COA, he may not appeal
the district court’s decision absent a grant of a COA by this court. 28 U.S.C.
2
Although Bedford did not file a notice of appeal until September 24, 2009, we
treat his motion for a certificate of appealability, filed on August 13, 2009, as the
functional equivalent of a timely notice of appeal. See Smith v. Barry, 502 U.S. 244,
248-49 (1992).
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§ 2253(c)(1)(B). To obtain a COA, Bedford must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires him to show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotation omitted).
Bedford argues that his trial counsel was constitutionally deficient because counsel
stipulated that the gun Bedford was charged with possessing had traveled in interstate
commerce, a fact the government was required to prove under 18 U.S.C. § 922(g)(1).
On appeal, Bedford does not raise the claim that counsel was constitutionally ineffective
in failing to challenge the court’s instruction to the jury.
To establish ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984), Bedford must demonstrate: (1) that his trial counsel was deficient such
that he was deprived of “reasonably effective assistance”; and (2) that counsel’s deficient
performance prejudiced his case, meaning that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 680, 694. Bedford must overcome the presumption that counsel’s
decision “might be considered sound trial strategy.” Id. at 689.
Construing Bedford’s arguments liberally, see Haines, 404 U.S. at 520-21, we read
his brief to contend that counsel misrepresented to the court Bedford’s intention to
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stipulate that the weapon at issue had moved in interstate commerce. However, the
district court judge explained to Bedford the meaning of a stipulation, the facts to which
Bedford stipulated, and the consequences of the stipulation. The judge specifically asked
Bedford if he had any questions about the stipulation and told Bedford that the ultimate
decision about whether to stipulate should be made by Bedford and not his attorney.
Bedford—directly, not through counsel—then affirmatively entered his stipulation. Thus
the record contradicts Bedford’s argument.
Bedford next asserts that his counsel was deficient for allowing him to enter the
stipulation. As the district court noted, however, there are no firearms manufacturers
located in Kansas. Thus the weapon must have moved in interstate commerce. It was not
unreasonable for Bedford’s counsel to stipulate to a fact that he knew the government
could establish with minimal effort.
Bedford’s claim that his counsel was deficient such that his Sixth Amendment
rights were violated lacks factual support in the record. He thus has not made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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III
For the foregoing reasons, we DENY Bedford’s application for a COA and
DISMISS the appeal.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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