United States v. Snisky ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 2, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1199
(D.C. Nos. 1:16-CV-01044-RM &
GARY SNISKY, 1:13-CR-00473-RM-1)
(D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, BALDOCK, and KELLY, Circuit Judges.
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Petitioner Gary Snisky, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255motion. He also seeks leave to proceed in forma pauperis (IFP). Exercising
jurisdiction under 28 U.S.C. § 2253(a), we deny his request for a COA, deny his IFP
motion, and dismiss this matter.
BACKGROUND
Snisky was indicted on thirteen counts of mail fraud under 18 U.S.C. § 1341and five counts of money laundering under 18 U.S.C. § 1957 in connection with an
*
This order is not binding precedent, except under the doctrines of law of the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.
allegedly fraudulent investment scheme. He ultimately pled guilty to one count of
mail fraud and one count of money laundering pursuant to a plea agreement in which
he stipulated, among other things, that he had lied and made misrepresentations to
investors and was subject to various sentence enhancements under the U.S.
Sentencing Guidelines based on the amount of the loss and other stipulated facts. In
the plea agreement, he also agreed not to contest these enhancements. With one
exception not relevant here, the presentence report (PSR) agreed with the stipulated
sentencing enhancements and determined that Snisky’s advisory sentencing range
under the Guidelines was 78 to 97 months. The district court adopted the findings of
the PSR, sentenced Snisky to 84 months in prison, and ordered restitution in the
amount stipulated in the plea agreement. Snisky filed a direct appeal in this court,
which was later dismissed on his motion.
Snisky filed a § 2255 motion to vacate, set aside or correct his conviction and
sentence, claiming ineffective assistance of counsel. In a thorough 20-page order, the
district court examined Snisky’s claims under the two-part standard stated in
Strickland v. Washington, 466 U.S. 668 (1984), and concluded the record
conclusively showed he was not entitled to relief. It therefore denied Snisky’s
motion and his request for an evidentiary hearing and also denied a COA on its
decision. The district court denied Snisky’s subsequent motion for leave to proceed
IFP on appeal.
Snisky now requests a COA in order to contest the district court’s decision and
also asks that we allow him to proceed IFP in this appeal.
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DISCUSSION
To appeal the district court’s denial of § 2255 relief, Snisky must obtain a
COA. 28 U.S.C. § 2253(c)(1)(B). We may issue a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
This standard requires him to demonstrate “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)
(internal quotation marks omitted). In determining whether Snisky has met this
standard, we do not engage in a “full consideration of the factual or legal bases
adduced in support of the claims” but rather “an overview of the claims . . . and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
In his application for COA, Snisky contends the district court erred in rejecting
his claims of ineffective assistance of counsel in connection with his guilty plea and
sentencing1 and that it abused its discretion in denying these claims without an
evidentiary hearing. We examine each contention in turn under the COA standard.
Because Snisky is proceeding pro se, we review his COA application liberally but do
not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
1
Snisky also asserted in the district court that his counsel rendered ineffective
assistance in failing to challenge alleged government misconduct, but he does not
dispute the court’s denial of this claim in his application for COA.
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A. Ineffective Assistance of Counsel Claims
The Sixth Amendment provides criminal defendants with the right to effective
assistance of counsel. See Strickland, 466 U.S. at 685-86. To establish that he was
deprived of this right, a defendant must show “both that his counsel’s performance
‘fell below an objective standard of reasonableness’ and that ‘the deficient
performance prejudiced the defense.’” Byrd v. Workman, 645 F.3d 1159, 1167
(10th Cir. 2011) (quoting Strickland, 466 U.S. at 687-88). To meet the first prong of
this test, a defendant “must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional judgment.” Strickland,
466 U.S. at 690. The court must then determine “whether, in light of all of the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance,” id., applying a “highly deferential” standard
that reflects the “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” id. at 689; see Hooks v. Workman,
689 F.3d 1148, 1187 (10th Cir. 2012) (“[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” (internal quotation marks omitted)). To establish
prejudice as required by Strickland’s second prong, a defendant cannot rely on
speculation, but instead must show “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S at 694. An insufficient showing under either prong
of the Strickland test is dispositive. Id. at 697.
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1. Guilty plea
Snisky claimed in the district court and now in this court that he received
ineffective assistance of counsel in connection with the government’s plea offer
because his counsel (1) did not understand the relevant law and failed to properly
investigate the case; (2) did not explain the government’s burden in proving his
fraudulent intent and the sentencing factors, (3) failed to present evidence disputing
his intent and the sentencing factors to the government during plea negotiations;
(4) advised him not to challenge the government’s loss calculation because it would
cause the government to withdraw its downward adjustment for acceptance of
responsibility; and (5) coerced Snisky to accept the plea agreement by falsely
promising that he would provide mitigating evidence at sentencing and object to what
Snisky now claims are inaccuracies in the plea agreement’s stipulated facts. Snisky
also asserted he would not have accepted the plea agreement if defense counsel had
not assured him that the stipulated facts were disputed and would be further argued.
The district court found Snisky failed to demonstrate his counsel’s
performance was outside the range of professionally competent assistance because
these assertions were conclusory, see United States v. Fisher, 38 F.3d 1144, 1147
(10th Cir. 1994), not supported by evidence refuting the fraudulent intent and other
facts to which he stipulated,2 and also were contrary to his representations in the plea
2
Snisky suggests in his application that he submitted affidavits and other
documentation to the district court in support of his motion, but in fact he submitted
(continued)
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agreement, in his Statement in Advance of Guilty Plea, and at the change of plea
hearing. In particular, during the plea hearing, Snisky, a college graduate, affirmed
under oath that he had read and reviewed the stipulated facts in the plea agreement
with counsel and admitted that these facts were true. He also averred that he had
agreed not to dispute the sentencing factors reported in the plea agreement and that
he understood the charges against him, had reviewed the elements of the charged
offenses with counsel, and understood the government’s burden to prove each
element beyond a reasonable doubt. He also affirmed that he had read and
understood the Statement in Advance of Guilty Plea, which reports that the only
promises made to induce him to plead guilty were those set out in the plea agreement.
Finally, Snisky affirmed at the hearing that he was satisfied with his counsel and the
representation and advice he had received.
Such “‘[s]olemn declarations in open court carry a strong presumption of verity.
The subsequent presentation of conclusory allegations unsupported by specifics is subject
to summary dismissal, as are contentions that in the face of the record are wholly
incredible.’” Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir. 1996) (quoting Blackledge
v. Allison, 431 U.S. 63, 74 (1977)); see United States v. Silva, 430 F.3d 1096, 1099-100
(10th Cir. 2005) (relying on plea agreement and plea colloquy to deny COA on
ineffective assistance of counsel claim). Based on Snisky’s declarations at the plea
hearing and our review of the rest of the record on appeal, we conclude that reasonable
only three exhibits, none of which refute the stipulated facts to which he agreed in
the plea agreement.
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jurists could not debate the district court’s denial of Snisky’s claim of ineffective
assistance of counsel relating to his guilty plea.3
2. Sentencing
We also conclude that reasonable jurists would not debate the district court’s
denial of Snisky’s ineffective assistance claim regarding his counsel’s performance at
sentencing. In his application for COA, Snisky argues, as he did in the district court,
that his defense counsel provided ineffective assistance at this phase of his
proceedings because he failed to contest the loss calculation and other sentencing
factors reported in the PSR and adopted by the district court in sentencing. Counsel’s
failure to dispute the loss calculation and other sentencing factors is not objectively
unreasonable, however, when Snisky stipulated to these facts and sentencing
enhancements in the plea agreement and affirmed at the plea hearing that he
understood and agreed to them. Cf. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.
1997) (rejecting an ineffective counsel claim for failure to object to testimony
3
In his application for COA, Snisky also argues for the first time that he
received ineffective assistance in connection with his plea because counsel failed to
explain adequately the plea agreement’s “ambiguous language” and the “comparative
benefits of the plea offer relative to proceeding to trial.” Appl. at 5, 15. Snisky also
apparently blames his counsel for the government not making a plea offer until
30 days before trial and then giving him only 8 days to consider it. See id. at 13. We
need not address these arguments because Snisky “has not provided a reason to
deviate from the general rule that we do not address arguments presented for the first
time on appeal.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012)
(internal quotation marks omitted). Nonetheless, we note that reasonable jurists
would agree that these assertions are conclusory and hence are not sufficient to
overcome the presumption that his counsel’s performance was objectively
reasonable.
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because “failure to assert a meritless objection cannot be grounds for a finding of
deficient performance”).
Snisky further claims that his counsel’s performance at sentencing was
constitutionally deficient because he failed to provide any mitigating facts, object to
the government witness’ testimony, or argue for a lower sentence. These assertions
are conclusory and are also contradicted by the record, which shows that Snisky’s
counsel filed objections to the PSR before the sentencing hearing, objected to the
government witness’ testimony and cross-examined him at the hearing, and argued at
length in a written motion and at the hearing that mitigating factors warranted
probation or a sentence well below the advisory guideline range. Snisky also failed
to show in the district court that there was a reasonable probability that but for his
counsel’s allegedly deficient performance he would have received a lower sentence,
as required to meet Strickland’s prejudice requirement. See United States v.
Washington, 619 F.3d 1252, 1262 (10th Cir. 2010) (stating standard for
demonstrating prejudice for ineffective performance at sentencing); Byrd, 645 F.3d
at 1168 (noting “mere speculation” is insufficient to show prejudice under
Strickland). The district court’s conclusion that Snisky did not establish ineffective
assistance of counsel at sentencing is therefore not debatable.
B. Denial of Evidentiary Hearing
Snisky also seeks to appeal the district court’s denial of his request for an
evidentiary hearing. The district court based its decision on its findings that Snisky failed
to demonstrate any material disputed factual issues and that the record conclusively
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showed he was not entitled to relief on any of his claims. This decision is reviewed for
abuse of discretion. See United States v. Moya¸ 676 F.3d 1211, 1214 (10th Cir. 2012).
Given the record below, reasonable jurists would agree the district court did not
abuse its discretion in denying an evidentiary hearing. See, e.g., Anderson v. Att’y
Gen. of Kan., 425 F.3d 853, 860 (10th Cir. 2005) (stating evidentiary hearing not
necessary when “[t]he record refutes the claim of ineffective assistance”); Hooks v.
Workman, 606 F.3d 715, 731 (10th Cir. 2010) (affirming denial of evidentiary
hearing because “the general and conclusory nature of the allegations in [the
petitioner’s request] fully support the district court’s decision to deny that request”);
United States v. Gonzalez, 596 F.3d 1228, 1244 (10th Cir. 2010) (denying request for
COA on failure to conduct evidentiary hearing because “there were no relevant,
disputed issues of fact that needed to be resolved”).
CONCLUSION
Because no reasonable jurist would debate the district court’s decision, we
deny a COA and dismiss the appeal. We also deny Snisky’s IFP motion because he
failed to demonstrate “a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” Silva, 430 F.3d at 1100 (internal quotation
marks omitted).
Entered for the Court
Nancy L. Moritz
Circuit Judge
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