United States v. Ballieu , 480 F. App'x 494 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 11, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-8089
v. (D.C. Nos. 2:10-CV-00037-ABJ and
2:08-CR-00015-ABJ-1)
CASEY BALLIEU, (D. of Wyo.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Casey Ballieu is a federal prisoner currently serving a fifteen-year sentence
on child pornography charges. He seeks a certificate of appealability (COA) to
challenge the district court’s denial of his 28 U.S.C. § 2255 petition for a writ of
habeas corpus. The district court dismissed Ballieu’s petition, concluding that his
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
representation at trial was not constitutionally deficient and that he failed to
support his other claims that various constitutional rights were violated.
On appeal, Ballieu raises a new argument, claiming his trial counsel was
deficient for failing to raise the issue that Ballieu was incompetent when he
committed his offense and at trial. We find Ballieu fails to support his claims and
DENY his request for a COA.
I. Background
In November 2007, Ballieu, who was then employed in Colorado,
inadvertently sent a text message containing an image of child pornography to his
estranged wife, who resided in Wyoming. His wife contacted the police, and
Ballieu was subsequently arrested and charged with the distribution of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). 1 A jury convicted him
and he was sentenced to 180 months in prison and 20 years of supervised release.
Ballieu filed an unsuccessful direct appeal with this court. United States v.
Ballieu, 348 F. App’x 335 (10th Cir. 2009). He then filed a timely pro se § 2255
motion, arguing his counsel was ineffective because he failed to adequately cross-
examine certain witnesses, failed to negotiate a plea agreement allowing Ballieu
to plead nolo contendere, and made several other errors that cumulatively
amounted to constitutionally ineffective assistance. The district court dismissed
1
Ballieu also received an enhanced minimum sentence under 18 U.S.C.
§ 2252A(b)(1) because of a prior conviction.
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Ballieu’s petition, denied a COA, and denied Ballieu’s motion to proceed in
forma pauperis.
II. Discussion
To obtain a COA, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies
this standard by demonstrating that “reasonable jurists could debate whether . . .
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) (internal quotations omitted).
Ballieu did not file a proper appellate brief, but instead asserted his claims
and accompanying legal arguments in a short letter to the court, which also
requested that we construe his notice of appeal as a request for a COA. Because
Ballieu is a pro se litigant, we construe his pleadings and other filings liberally.
Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). We thus
construe his notice of appeal as a request for a COA, and his letter to the court as
his opening brief.
On appeal, Ballieu raises an entirely new argument, claiming that his trial
counsel was ineffective because he failed to raise the issue of Ballieu’s
competency to stand trial or to assert an insanity or diminished capacity defense.
He also claims that he is not competent to represent himself now. We construe
the latter as a claim the district court erred by failing to appoint counsel to
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represent him on his habeas petition. We also construe it to request that we
appoint counsel to represent him.
A. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, Ballieu must
demonstrate that his counsel’s performance “fell below an objective standard of
reasonableness” and “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). There is a strong
presumption that counsel’s performance was adequate and reflected the exercise
of reasonable professional judgment. Id. at 690. To be constitutionally deficient,
counsel’s conduct must be outside the “wide range of professionally competent
assistance.” Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010). “In other
words, it must [be] completely unreasonable, not merely wrong.” Id.
Ballieu did not argue before the district court that his counsel was
ineffective for failing to raise the issue of his competency or assert an insanity or
diminished capacity defense. Normally we do not consider arguments not raised
before the district court in the absence of unusual circumstances. United States v.
Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005). Ballieu’s alleged incompetence
could present such a circumstance, but we do not find any support for his
assertion. Ballieu points to no evidence in the record establishing that he was or
is incompetent. Our independent review of the record reveals only that his trial
attorney moved for a competency hearing and that the district court granted this
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request. The outcome of the hearing is not in the record before this court, but
Ballieu did proceed to trial.
That his attorney requested a competency hearing is not evidence that
Ballieu actually was incompetent to stand trial. It does undermine the merits of
the first ineffective assistance claim he raises on appeal, that his counsel should
have presented evidence he was incompetent to stand trial, by showing that
Ballieu’s attorney raised the issue of his client’s competency before the trial
court. We fail to see how this falls below an objective standard of
reasonableness, or what more Ballieu’s counsel should have done.
Ballieu’s second ineffective assistance argument is that his counsel did not
assert an insanity or diminished capacity defense. Ballieu is incorrect that
diminished capacity is a defense to a charge under 18 U.S.C. § 2252A(a)(2)(A).
This is a crime of general intent, as the statute criminalizes the “knowing”
reception or distribution of child pornography in interstate commerce. United
States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (observing that Congress’s use
of the term “knowingly” indicates a general intent offense). But diminished
capacity is a defense only to crimes of specific intent, which require not only a
voluntary act but also the specific intent to do something the law forbids. See
United States v. Jackson, 248 F.3d 1028, 1029–30 (10th Cir. 2001).
Insanity, on the other hand, can be a defense to a general intent crime. See
United States v. Allen, 449 F.3d 1121, 1125 (10th Cir. 2006). But there is no
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evidence in the record supporting the proposition that Ballieu is insane, nor does
he cite any facts or make any arguments in support of this claim. We will
construe Ballieu’s petition liberally, but we will not make his arguments for him.
United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
Again, the only evidence in the record that goes to whether Ballieu is or
was incompetent is the fact that his attorney requested a competency hearing prior
to trial. This does not demonstrate that Ballieu was incompetent or insane, let
alone that his attorney was objectively unreasonable in failing to assert this
defense, or that his attorney’s failure to raise the defense was constitutionally
prejudicial.
Ballieu’s second argument thus satisfies neither prong of Strickland.
Accordingly, we do not find that reasonable jurists could debate whether Ballieu
should be encouraged to pursue his ineffective assistance claims on appeal.
B. Failure to Appoint Appellate Counsel
Ballieu’s second claim is that he is not competent to represent himself in
the current proceedings. In support of his claim, he cites to Indiana v. Edwards,
554 U.S. 164 (2008), where the Supreme Court held that states may require
representation for defendants who are competent to stand trial but not competent
to represent themselves. He also asserts he had a paralegal assist him with the
preparation of his § 2255 petition, that this paralegal lost his application for a
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COA or somehow cheated him, and that the government supported this alleged
scam to avert his collateral attack on his sentence.
Construing Ballieu’s petition liberally, we interpret his claim regarding his
incompetency to represent himself now as an argument that the district court erred
by failing to appoint counsel to represent him on his § 2255 petition and a request
that we appoint him counsel. It is unclear what he means by his assertions
regarding the paralegal. Ballieu’s § 2255 petition and brief below are well-
written and cogent. We interpret his argument to explain that he had legal
assistance when filing his pleadings below, and thus was able to competently
represent himself, but cannot do so now because he has lost this assistance. 2
Ballieu’s claim that the district court erred by failing to appoint counsel is
without merit. Defendants do not have a constitutional right to counsel when
bringing a collateral attack on a conviction. Pennsylvania v. Finley, 481 U.S.
551, 555 (1987). Neither Ballieu’s § 2255 petition nor his brief in support of that
petition requested the district court appoint him counsel. Nor did Ballieu raise
the issue of his alleged incompetency before the district court, depriving it of any
notice that the appointment of counsel might be warranted. Based on these facts,
we conclude the district court did not err by failing to appoint Ballieu counsel.
2
As for his assertion that his paralegal’s desertion is a scam that the
government somehow participated in or supports, his allegation is wholly
conclusory. Again, we will not make Ballieu’s arguments for him when he
provides no support for his claims. Fisher, 38 F.3d at 1147.
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As for Ballieu’s request that we appoint him counsel, we decline to do so.
Ballieu is not constitutionally entitled to the assistance of counsel in this appeal.
He was able to submit a § 2255 petition and supporting brief to the district court,
and we have been able to consider his claims on appeal.
C. In Forma Pauperis
The district court denied Ballieu’s two motions to proceed in forma
pauperis on appeal. The court found that although Ballieu was able to
demonstrate his inability to pay the required filing fees, he could not demonstrate
the existence of a reasoned, nonfrivolous argument supporting the issues he
intended to raise on appeal. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
Cir. 1991). Ballieu then filed a separate in forma pauperis motion with this
court.
Under 28 U.S.C. § 1915(a)(3), a petitioner may not appeal in forma
pauperis if the trial court certifies in writing that the appeal is not taken in good
faith. An appeal is taken in good faith when it presents a nonfrivolous issue.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The district court denied
Ballieu’s in forma pauperis motions on the grounds that they were frivolous,
indicating they were not taken in good faith. Nonetheless, we may consider
Ballieu’s new in forma pauperis motion under Federal Rule of Appellate
Procedure 24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079
(10th Cir. 2007).
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Upon consideration, we deny Ballieu’s in forma pauperis motion. His
arguments in support of his claims are conclusory, supported neither by
meaningful legal authority nor citations to any record evidence. He failed to raise
before the district court any of the grounds he asserts on appeal, and addresses
none of the points the district court made in dismissing his § 2255 petition. We
conclude Ballieu’s appeal is frivolous and DENY his motion to proceed in forma
pauperis.
III. Conclusion
For the reasons stated above, we DENY Ballieu’s request for a COA and
DISMISS his appeal. We also DENY his request to proceed in forma pauperis.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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