United States v. Nowlin ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 8, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8133
(D.C. Nos. 2:15-CV-00001-NDF and
CASEY JAMES NOWLIN, 2:12-CR-00116-NDF-1)
(D. Wyo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before KELLY, McKAY, and MORITZ, Circuit Judges.
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Mr. Nowlin now challenges for a second time his conviction on five counts of
assault within Indian Country. We rejected his first challenge—his direct appeal—in
United States v. Nowlin, 555 Fed. App’x 820 (10th Cir. 2014) (unpublished). We
must now determine whether his § 2255 petition, denied by the district court, merits a
certificate of appealability.
Mr. Nowlin alleges nine errors in the district court’s decision. They involve,
among other things, the following: his status as an Indian, which the government had
to prove in order to create jurisdiction, see id.; hearsay testimony to which his lawyer
*
This order is not binding precedent, except under the doctrines of law of the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.
did not object; a witness’s alleged perjury; the allegedly suggestive circumstances
surrounding a pair of in-court identifications; the supposed inadequacy of the
evidence for one of the charges; and a government witness’s testimony that Mr.
Nowlin had previously been on probation or parole.
Because all of these issues are procedurally barred, they must be reviewed
under the Strickland standard for ineffective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Nowlin must show his
lawyer’s performance was not merely questionable but constitutionally deficient. He
must also “show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. Mr. Nowlin has not met these requirements.
As the district court explained, persuasively and at length, Mr. Nowlin has not
shown his counsel’s performance was constitutionally deficient. Although Mr.
Nowlin’s counsel did not raise a number of objections that might plausibly have been
sustained, we must presume that, “under the circumstances,” the decision not to
object “might be considered sound trial strategy.” Id. at 689 (quoting Michel v.
Lousiana, 350 U.S. 91, 101 (1955)). Mr. Nowlin has not rebutted this presumption:
he has not demonstrated his lawyer’s defense tactics fell “outside the wide range of
professionally competent assistance,” id. at 690.
Further, even if Mr. Nowlin had shown his counsel’s performance was
constitutionally deficient, Strickland’s prejudice requirement makes relief
impossible. He cannot plausibly argue that, but for his counsel’s alleged failures, the
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jury would have found he was not an Indian: the court took judicial notice of a
number of facts proving that Mr. Nowlin is an Indian, a decision we affirmed on
direct appeal. Nowlin, 555 Fed. App’x at 824–25. Neither has he plausibly argued
that, but for his counsel’s alleged failures, the jury would have found him factually
innocent of the assaults. The government’s case was simply too overwhelming.
It is undisputed that Mr. Nowlin was at the party where the assaults occurred.
It also appears to be undisputed that he was one of a group of people who arrived at
the party in a red car—the same red car, according to witnesses, that the attacker both
emerged from and departed in. Physically, he fit multiple witnesses’ description of
the attacker: a short, heavyset, light-skinned man with a shaved or bald head.
But witnesses went much further than testifying about his general physical
appearance. In addition to the two witnesses whose in-court identifications Mr.
Nowlin has challenged, two other witnesses identified him in open court. A third,
who had ridden in the red car with Mr. Nowlin, identified him by name as the
attacker. Another witness testified that, while the assaults were happening, she heard
a girl say, “Casey, don’t. Casey, quit.” (R. at 369.) Mr. Nowlin has not identified
another “Casey” the girl could have been speaking to.
Finally, on top of everything else, Mr. Nowlin was also incriminated by two
conversations he had the night after the assaults. First he visited an acquaintance and
asked him questions, “wanting to know what it was going to be like to go to prison.”
(R. at 406.) Shortly thereafter he was arrested by a BIA officer and asked the officer
the reason for the arrest. When the officer answered, “You almost killed that guy last
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night,” Nowlin responded, “Why do you give a [expletive] about those guys? They
jump people all the time and you guys don’t do [expletive].” (R. at 409.) Then he
asked, “So who is it that turned me in?” before insisting, “I wasn’t even there. I was
at my sister’s house.” (Id.) When the officer, without naming names, said “several
people” had identified him, Nowlin responded, “Don’t nobody know me,” and then
changed his alibi: “You guys ain’t got [expletive]. I was at my mom’s house.” (R. at
53.)
Mr. Nowlin does not challenge any of this evidence,1 and we have no doubt it
would have persuaded the jury. Accordingly, even if Mr. Nowlin could show his
lawyer’s performance was deficient, he cannot show he was prejudiced by it.
No reasonable judge would debate whether the district court erred by denying
Mr. Nowlin’s petition. We therefore DENY his certificate of appealability and
DISMISS the appeal. We GRANT his motion to proceed in forma pauperis on
appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
1
In Mr. Nowlin’s petition before the district court, he did challenge the
testimony concerning his self-incriminating conversations. But he “decided not to
include th[is] issue[] in his appeal.” (Appellant’s Br. at 26.)
4