United States v. Howell ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
April 15, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-7110
v. (D.C. No. 08-CV-00238-RAW)
PAMELA RAYE HOWELL, a/k/a/ (E.D. Okla.)
Pamela Raye Morgan,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Defendant, a pro se federal prisoner, seeks a certificate of appealability to
appeal the district court’s denial of her § 2255 habeas petition, which raised
various grounds of ineffective assistance of counsel. In her application for a
certificate of appealability, Defendant argues that she made a sufficient showing
of ineffective assistance and prejudice to at least receive an evidentiary hearing
on her claims.
After thoroughly reviewing the record and Defendant’s filings on appeal,
we conclude that reasonable jurists would debate whether the district court erred
*
This order and judgment is not binding precedent, except under the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.
in denying the habeas petition without first holding an evidentiary hearing. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000). We therefore grant Defendant a
certificate of appealability to appeal the district court’s denial of her request for
an evidentiary hearing. See id. Having done so, we “review the district court’s
refusal to hold an evidentiary hearing for an abuse of discretion.” United States
v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004). “Because an error of law is, by
definition, an abuse of discretion, any error of law in dismissing [the] motion for
an evidentiary hearing would constitute an abuse of discretion.” United States v.
Duran-Salazar, 307 F. App’x 209, 211 (10th Cir. 2009) (quoting Almonacid v.
United States, 476 F.3d 518, 520-21 (7th Cir. 2007)) (alteration in original).
Following a jury trial, Defendant was convicted on three drug counts and a
related firearm count, while she was acquitted on a second firearm count. The
acquitted count and two of the counts of conviction—the firearm count and a
charge of attempting to manufacture methamphetamine—stemmed from police
officers’ discovery of several firearms and numerous items associated with the
manufacture of meth in a mobile home and adjacent travel trailer. While there
was strong evidence that someone had possessed firearms and attempted to
manufacture meth at that location, the evidence linking Defendant to the location
was somewhat tenuous. Indeed, the trial court noted it was “troubled about how
close it is on” these counts, although the court ultimately concluded—“though not
without some discomfiture”—that there was sufficient evidence to withstand
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Defendant’s Rule 29 motion for a judgment of acquittal. (Supplemental R. at
434.)
After reviewing the record, we conclude the allegations in Defendant’s
habeas petition and the sworn affidavits she attached in support were sufficient to
entitle her to an evidentiary hearing on her ineffective assistance claims. Most of
the claims Defendant raised appear sufficient, if true, to satisfy the first prong of
Strickland, see Strickland v. Washington, 466 U.S. 668, 687 (1984), 1 and they are
not conclusively refuted by the record, see 28 U.S.C. § 2255(b). In light of the
closeness of the case and the substantiality of Defendant’s sworn allegations, we
conclude it was an abuse of discretion for the district court to deny Defendant’s
request for an evidentiary hearing. See United States v. Barboa, 777 F.2d 1420,
1422-23 (10th Cir. 1985); Duran-Salazar, 307 F. App’x at 211. We note the
district court applied an incorrect legal standard in denying Defendant’s request
for an evidentiary hearing as to one of her allegations, reasoning that “[n]othing
in the trial record . . . supports [Defendant’s] assertion that counsel prevented her
from testifying” (Order at 6), rather than correctly considering whether anything
in the record conclusively refuted this assertion. See 28 U.S.C. § 2255(b)
(providing that a district court shall grant an evidentiary hearing “[u]nless the
1
We agree with the district court that counsel did not provide ineffective
assistance by failing to seek suppression of evidence discovered in an allegedly
pretextual traffic stop. See Whren v. United States, 517 U.S. 806, 813-14 (1996).
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motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief”); Machibroda v. United States, 368 U.S. 487, 494-95 (1962)
(indicating a district court is not free to disregard a material allegation upon
which the record can cast no light). As for the other alleged grounds of
ineffective assistance, the district court denied relief based on its conclusion that
Defendant had not sufficiently demonstrated prejudice due to counsel’s alleged
ineffectiveness. Given the closeness of the case, however, we conclude the
question of prejudice as to these claims is better left for consideration following
an evidentiary hearing. See Duran-Salazar, 307 F. App’x at 211.
We therefore GRANT Defendant’s request for a certificate of appealability
and REVERSE and REMAND for an evidentiary hearing on Defendant’s claims
of ineffective assistance.
Entered for the Court
Monroe G. McKay
Circuit Judge
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