United States v. Buckley , 46 F. App'x 615 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 18 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3347
(D.C. Nos. 01-CV-3201-RDR &
WILLIAM J. BUCKLEY, 98-CR-40026-02-RDR)
a/k/a BILLY JOE BUCKLEY, (D. Kansas)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the appellant’s brief and the 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 case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
Defendant-appellant William J. Buckley, a federal inmate proceeding pro
se, seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255motion. Because he has failed to make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his application for a
certificate of appealability (“COA”) and dismiss the appeal.
In 1999, Buckley was found guilty of bank robbery, but acquitted of assault
on a federal officer. His conviction was affirmed on direct appeal. United States
v. Buckley , No. 99-3161, 2000 WL 702481 (10th Cir. May 26, 2000). He then
filed his § 2255 motion, claiming that his trial counsel has been constitutionally
ineffective because he failed to seek a severance of the bank robbery charge from
the assault charge and had failed to inform the trial court that Buckley wanted to
testify on one count but remain silent on the other. The district court ruled that,
even assuming there was any deficient performance by counsel, Buckley did not
sufficiently demonstrate that any prejudice resulted. See Strickland v.
Washington , 466 U.S. 668, 687 (1984). Buckley also claimed his counsel was
ineffective for failing to advise him that (a) even if he was found not guilty on the
assault charge, he could still be sentenced for that charge if found guilty of bank
robbery, and (b) if he testified, he could be sentenced for obstructing justice. As
to the former claim, the district court ruled that Buckley benefitted from being
tried and acquitted of the assault charge and his sentence was properly enhanced
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for reckless endangerment during flight. As to the latter, it ruled that Buckley’s
sentence was properly enhanced for obstruction of justice because he committed
perjury during his testimony and that Buckley was aware he could be penalized
for perjury.
On appeal, Buckley contends the district court erred in (1) denying his
motion to extend the one-year filing deadline under § 2255 so that he could obtain
a copy of his trial transcripts; (2) failing to appoint counsel to represent him in
the § 2255 proceeding; (3) failing to conduct an evidentiary hearing; (4) finding
that he was not prejudiced by his counsel’s alleged deficiencies; and (5) failing to
provide him with a copy of the trial transcripts.
In order for Buckley to make a substantial showing of the denial of a
constitutional right, he must 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)
(quotations omitted). Nothing in the facts, the record on appeal, or Buckley’s
application for COA or brief raises an issue which meets this standard. The
circumstances recited in Buckley’s motion for an extension of time were not
sufficiently extraordinary to warrant equitable tolling. See Miller v. Marr , 141
F.3d 976, 978 (10th Cir. 1998). Buckley possessed no right to counsel in the
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prosecution of his § 2255 motion. See Pennsylvania v. Finley , 481 U.S. 551, 555
(1987). The motion, files and records of this case conclusively demonstrated that
Buckley was not entitled to relief; thus, he was not entitled to an evidentiary
hearing. See United States v. Kennedy , 225 F.3d 1187, 1197 (10th Cir. 2000),
cert. denied , 532 U.S. 943 (2001). Buckley never requested a copy of his trial
transcripts from the district court. Finally, his § 2255 motion failed to make a
sufficient showing that, under Strickland , 466 U.S. at 687, his counsel’s
performance prejudiced him.
We DENY Buckley’s request for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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