United States v. Chalan , 438 F. App'x 710 ( 2011 )


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  •                                                                     FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    TENTH CIRCUIT                         September 13, 2011
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    No. 11-2058
    v.                                              (D.C. Nos. 1:10-CV-00314-JEC-WPL &
    1:85-CR-00034-JEC-1)
    DANIEL CHALAN, JR.,                                            (D. N.M.)
    Defendant–Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
    Daniel Chalan Jr. seeks a certificate of appealability (“COA”) to appeal the district
    court’s denial of his 
    28 U.S.C. § 2255
     habeas petition. We deny a COA and dismiss.
    I
    On January 28, 1985, an Allsup’s convenience store located within the Cochiti
    Pueblo was robbed. Inside the store, police discovered the body of the assistant store
    manager, who had been shot multiple times and repeatedly bludgeoned. Several bullet
    *
    This order is not binding precedent except under the doctrines of law of the case,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.
    fragments and spent casings were recovered from the scene.
    The day after the murder, police and FBI agents learned that Chalan, his brother,
    and two cousins had been seen near the crime scene wielding rifles. Authorities
    subsequently interviewed Chalan, who initially denied that he was involved in the crime.
    The following day, however, he confessed to committing the murder. His detailed
    confession largely matched the physical evidence discovered at the crime scene. Chalan
    also directed police to pieces of a rifle hidden nearby which contained hair consistent
    with the victim’s, and to a key that fit the Allsup’s cash register.
    Chalan was charged in federal court with first-degree murder, robbery, and two
    counts of using a firearm during a felony. The prosecution called more than twenty
    witnesses during a four-day trial. One of these witnesses, FBI Special Agent Earnest
    Peele, testified about the composition of the bullet fragments found at the crime scene.
    Using a technique known as comparative bullet lead analysis (“CBLA”), Peele concluded
    that the fragments found at the crime scene fell into three groups. He testified that
    fragments within each group were similar enough in composition that they likely came
    from the same box of bullets or from boxes of bullets manufactured around the same
    time. Peele could not opine as to whether bullet fragments across groups came from the
    same box.
    A jury convicted Chalan on all counts. On direct appeal, we vacated one of
    Chalan’s firearm convictions and remanded for an evidentiary hearing on the
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    government’s use of peremptory strikes. United States v. Chalan, 
    812 F.2d 1302
    , 1317
    (10th Cir. 1987). The district court ultimately upheld Chalan’s remaining three
    convictions.
    More than twenty years later, Chalan received a letter from the U.S. Attorney’s
    Office stating that the FBI had ceased using the CBLA technique and noting that Agent
    Peele’s trial testimony may have been misleading. Based on this new information,
    Chalan filed a § 2255 petition claiming that the admission of Peele’s testimony violated
    his right to due process. The district court held that Chalan had procedurally defaulted
    his claim by failing to raise it on direct appeal. Although it concluded that Chalan
    established cause because the factual predicate of his claim was unavailable at the time of
    his direct appeal, the court held that Chalan failed to demonstrate prejudice.
    II
    A petitioner may not appeal the denial of habeas relief under § 2255 without a
    COA. 
    28 U.S.C. § 2253
    (c)(1)(B). We will issue a COA only if Chalan can show “that
    jurists of reason would find it debatable whether the petition states a valid claim of the
    denial of a constitutional right and that jurists of reason would find it debatable whether
    the district court was correct in its procedural ruling.” Slack v. McDaniel, 
    529 U.S. 473
    ,
    484 (2000).
    As a general rule, “claims not raised on direct appeal may not be raised on
    collateral review unless the petitioner shows cause and prejudice.” Massaro v. United
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    States, 
    538 U.S. 500
    , 504 (2003) (citation omitted). To show cause for a procedural
    default, a petitioner must demonstrate that “some objective factor external to the defense
    impeded counsel’s efforts to comply with the . . . procedural rule.” Murray v. Carrier,
    
    477 U.S. 478
    , 488 (1986). Establishing prejudice requires a petitioner to demonstrate
    that the claimed constitutional violation “worked to his actual and substantial
    disadvantage, infecting his entire trial with error of constitutional dimensions.” United
    States v. Frady, 
    456 U.S. 152
    , 170 (1982).
    The Supreme Court has indicated that a petitioner can establish cause by showing
    that “the factual or legal basis for a claim was not reasonably available” at the time of
    direct appeal. Murray, 
    477 U.S. at 488
     (citation omitted). In the § 2254 context, we have
    applied the cause and prejudice test to a claim asserted under Brady v. Maryland, 
    373 U.S. 83
     (1963), in which the facts underlying the claim could not have been discovered
    until after a conviction became final. See Scott v. Mullin, 
    303 F.3d 1222
    , 1227-30 (10th
    Cir. 2002); see also United States v. Angelos, 417 F.App’x 786, 801 (10th Cir. 2011)
    (unpublished) (“The appropriate remedy available to a defendant who discovers evidence
    of prosecutorial misconduct or vindictiveness after completion of his direct appeal is to
    use that evidence as cause to excuse his procedural default.”).
    Nevertheless, Chalan argues that he did not procedurally default because he could
    not have discovered the deficiencies of the CBLA evidence at the time of his direct
    appeal. He cites to Bousley v. United States, 
    523 U.S. 614
     (1998), in which the Court
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    recognized “an exception to the procedural default rule for claims that could not be
    presented [on direct appeal] without further factual development.” 
    Id. at 621
    . Chalan
    maintains that his claim required further factual development because the letter he
    received from the U.S. Attorney’s office was not—and could not have been—part of the
    record on direct appeal. On this basis, he asserts that the exception to the procedural
    default rule applies and he should not be obligated to show cause or prejudice.
    Our circuit has not explicitly considered the interaction between Murray and
    Bousley. The former holds that a petitioner can show cause when the “the factual . . .
    basis for a claim was not reasonably available” at the time of direct appeal. Murray, 
    477 U.S. at 488
     (citation omitted). This statement suggests the cause and prejudice inquiry
    applies to such claims. But if the factual predicate for a claim is not available, it would
    appear to qualify under Bousley as a “claim[] that could not be presented without further
    factual development.” 
    523 U.S. at 621
    .1
    We need not decide whether Chalan’s claim fits within the exception identified in
    Bousley. To obtain a COA, Chalan must establish not only that the district court’s
    1
    One could read Bousley as limited to situations in which a petitioner was aware
    of his claim at the time of direct appeal but lacked a sufficient record to present it. See
    
    523 U.S. at 621
     (exception can be applied when facts underlying claim were “dehors the
    record and their effect on the judgment was not open to consideration and review on
    appeal” (quoting Waley v. Johnston, 
    316 U.S. 101
    , 104 (1942) (per curiam))). However,
    it would be a curious result to treat as procedurally defaulted claims that could not have
    been raised because the factual predicate for the claim was unavailable, but exempt from
    procedural default claims that could not have been raised simply because the trial record
    was insufficient.
    -5-
    procedural ruling was debatable, but also that the merit of his claim is subject to
    reasonable debate. See Slack, 
    529 U.S. at 484
    . And to prevail on a § 2255 claim that the
    admission of objectionable evidence violated a petitioner’s due process rights, the
    petitioner must show that “the error had substantial and injurious effect or influence in
    determining the jury’s verdict.” Brecht v. Abrahamson, 
    507 U.S. 619
    , 638 (1993); see
    also United States v. Dago, 
    441 F.3d 1238
    , 1245-46 (10th Cir. 2006) (Brecht standard
    applies to trial type constitutional errors in § 2255 proceedings). Accordingly, Chalan
    must show some form of prejudice regardless of the application of the procedural bar.
    This he cannot do.
    Assuming that the admission of CBLA testimony was error,2 we agree with the
    district court that the error did not influence the jury’s verdict. The CBLA evidence
    presented at trial merely implied that some bullet fragments found at the crime scene
    likely came from the same box of bullets. But Peele did not claim that all of the bullet
    fragments came from the same source. Accordingly, Peele’s testimony did not
    undermine Chalan’s argument that other individuals must have been involved in the
    crime.3 Nor did Peele tie the fragments to Chalan in any way. Even if jurors accepted
    2
    For a discussion of the problems with CBLA analysis, see United States v. Berry,
    
    624 F.3d 1031
    , 1035 n.3, 1037 (9th Cir. 2010).
    3
    Another witness testified that although some bullet casings found at the scene
    matched others, the variety of casings found throughout the store suggest that more than
    one gun was involved.
    -6-
    Peele’s testimony, it was at worst a cursory supplement to the other evidence offered at
    trial. Chalan confessed to the murder and relayed knowledge about details of the crime
    scene. He also directed police to a weapon that contained hairs consistent with the
    victim’s and to a key which was taken from the store. In light of this unequivocal
    evidence, the CBLA testimony had no apparent impact on Chalan’s convictions, and thus
    he suffered no actual prejudice.
    III
    Because Chalan has not shown that his claim is debatable on the merits, we
    DENY a COA and DISMISS the appeal.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
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