United States v. Turley ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 24 2000
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-3027
v. (D.C. No. 97-CV-3204)
(Kansas)
GEORGE W. TURLEY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
George Turley, a pro se federal prisoner, brought this proceeding under 28
U.S.C. § 2255 asserting three grounds for relief: (1) the sentencing guidelines are
unconstitutional, (2) his trial attorney was ineffective in failing to object to a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentence enhancement for obstruction of justice, and (3) the enhancement was not
supported by clear and convincing evidence or by proper fact findings. While the
motion was pending in district court, Mr. Turley filed two supplemental pleadings
asserting additional grounds for relief.
The district court ruled that the first and third claims in the initial motion
were procedurally barred by Mr. Turley’s failure to raise them on direct appeal.
See United States v. Turley, 37 F. Supp. 2d 1262, 1264 (D. Kan. 1998). The court
addressed the ineffective assistance claim on the merits and denied it. See id. at
1265. Finally, the court construed the two supplemental pleadings as
unauthorized successive motions under section 2255 and transferred them to this
court under Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). See
Turley, 37 F. Supp. at 1265-66. This court notified Mr. Turley that he had thirty
days in which to file a proper motion for permission to bring successive section
2255 motions and that his failure to do so would result in the denial of
authorization. When Mr. Turley did not respond, the matter was dismissed.
Turley v. United States, No. 99-3002 (10th Cir. Apr. 6, 1999).
Mr. Turley now appeals, raising four arguments. He first contends the
district court erred by failing to follow USSG § 5G1.3 and in failing to credit him
with time previously served on related counts. He further contends the
government erred in grouping his counts. These claims were first raised in Mr.
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Turley’s supplemental pleadings and were dismissed as unauthorized by this
court. Accordingly, we do not consider them. 1
Mr. Turley argues that his sentence violated due process because the
enhancement for perjury was not supported by clear and convincing evidence.
The district court held this claim procedurally barred by Mr. Turley’s failure to
raise it in his direct appeal. See Turley, 37 F. Supp. at 1264. “A defendant who
fails to present an issue on direct appeal is barred from raising the issue in a §
2255 motion, unless he can show cause for his procedural default and actual
prejudice resulting from the alleged errors, or can show that a fundamental
miscarriage of justice will occur if his claim is not addressed.” See United States
v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Mr. Turley does not argue on appeal
that the district court erred in applying procedural bar to this claim and we
therefore do not consider it. 2
Mr. Turley also contends the district erred in applying this enhancement
1
In his motion for certificate of appealability filed with this court, Mr.
Turley argues that the district court improperly construed his attempts to amend
his initial motion as successive section 2255 petitions. These arguments come too
late. Mr. Turley was given notice that this court was treating his supplements as
successive motions and had an opportunity to respond and make these arguments
at that time. When he failed to do so the matters were dismissed. They are
therefore no longer before us.
2
We note, as did the district court, that this claim would fail on the merits
in any event because this enhancement need be proven only by a preponderance of
the evidence. See United States v. Pelliere, 57 F.3d 936, 938 (10th Cir. 1995).
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because the court’s findings were not adequate and the evidence was insufficient.
Mr. Turley did not raise these issues either at sentencing or in his direct appeal.
In his initial section 2255 motion, Mr. Turley raised them only by asserting that
his counsel was ineffective at sentencing in failing to do so. The district court
addressed the ineffectiveness argument on the merits and rejected it, ruling
counsel had not been ineffective because the presentence report, which the
sentencing court had adopted, detailed the evidence of Mr. Turley’s false trial
testimony and was sufficient to support the enhancement. Mr. Turley does not
assert in this appeal that his trial counsel was ineffective. Because the challenges
Mr. Turley makes to the enhancement itself are otherwise barred by his failure to
raise them on direct appeal, and he has not offered us any argument against the
application of the bar, we do not address these claims on the merits.
In sum, we conclude that none of Mr. Turley’s claims are before us on the
merits. We deny his motion for a certificate of appealability and dismiss his
appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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