United States v. Hankerson , 591 F. App'x 688 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSFebruary 4, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-3195
v. (D.C. No. 6:13-CR-10113-EFM-1)
(D. Kan.)
MARK ANTHONY HANKERSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges. **
Petitioner-Appellant Mark Hankerson, a federal inmate appearing pro se,
appeals from the district court’s denial of his Motion for Leave of Court to
Conduct Discovery Pursuant to Rule 6(a) Governing § 2255. United States v.
Hankerson, No. 13-10113-EFM, 2014 WL 3955440 (D. Kan. Aug. 13, 2014). The
government has moved to dismiss the appeal as frivolous, and we grant the
*
This order and judgment is not binding precedent, except under the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.
government’s motion.
Background
Pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement with a stipulated
sentence of 120 months and a waiver of the right to appeal, Mr. Hankerson pled
guilty to one count of interference with commerce by means of robbery and one
count of brandishing a firearm during and in relation to a crime of violence. Doc.
37. The court entered judgment on February 10, 2014 reflecting a sentence of
120 months and three years’ supervised release, Doc. 43, and Mr. Hankerson filed
a notice of appeal. The government sought to enforce the plea agreement and we
granted the motion, indicating that Mr. Hankerson could pursue his ineffective
assistance of counsel claims in a § 2255 motion. United States v. Hankerson, 568
F. App’x 638, 638–39 (10th Cir. 2014).
Mr. Hankerson subsequently filed a “Motion for Leave of Court to Conduct
Discovery Pursuant to Rule 6(a) Governing § 2255.” R. 13. He argued that he
was entitled to appointment of counsel to conduct discovery in anticipation of an
ineffective assistance of counsel claim based upon a failure to request a mental
competency hearing. Id. The motion asserted “it is clear that the Petitioner
suffers from a mental disease or defect rendering him mentally incompetent to the
extent that he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.” Id.
Rule 6(a) provides that “[i]f necessary for effective discovery, the judge
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must appoint an attorney for a moving party who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.” Section 3006A, more commonly known as
the Criminal Justice Act, provides for appointment of counsel for financially
eligible individuals under certain circumstances, including where an individual “is
subject to a mental condition hearing under chapter 313,” 18 U.S.C.
§ 3006A(a)(1)(F), and, in § 2255 proceedings, where a court determines that “the
interests of justice so require.” Id. § 3006A(a)(2)(B).
The district court denied Mr. Hankerson’s motion, observing that “there is
nothing in the record that makes it clear that Mr. Hankerson suffers from a mental
disease or defect that renders him incompetent to understand the proceedings
against him or to assist in his defense.” R. 18. The court, which Mr. Hankerson
appeared before at sentencing, noted that Mr. Hankerson reported no history of
mental illness in the Presentence Investigation Report and denied any mental
health issues at his change of plea hearing. Id. Mr. Hankerson filed a timely
appeal. Doc. 61.
Discussion
In his pro se appeal, Mr. Hankerson argues the district court abused its
discretion in denying his motion. We construe Mr. Hankerson’s pro se pleadings
liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972). A claim is frivolous
where it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,
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490 U.S. 319, 325 (1989).
We agree with the government that both Mr. Hankerson’s appeal and his
underlying claim that the district court abused its discretion in denying discovery
are frivolous. Mr. Hankerson argues that he had a history of counseling and
diagnoses that resulted in him receiving disability benefits. Aplt. Br. 2. Yet he
provides no facts that would undermine the district court’s reliance on his
representations at the change of plea and sentencing hearings that he was
competent. As we have pointed out, though appearing pro se, an inmate is
responsible for factual development. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). As the district court noted, Mr. Hankerson reported at the presentence
investigation stage and the plea change stage that he had no mental health issues.
Thus, we GRANT the government’s motion and DISMISS Mr. Hankerson’s
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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