United States v. Ambort ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 24, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-4004
(D.C. Nos. 2:06-CV-00642-DB &
v. 2:98-CR-00197-DB-1)
(D. Utah)
ERNEST GLENN AMBORT,
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
Ernest Glenn Ambort, a federal inmate proceeding pro se, requests a
certificate of appealability (COA) to perfect his appeal from the district court’s
order that denied his motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. We deny the request and dismiss this appeal.
*
After examining the briefs and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
B ACKGROUND
Ambort and various co-defendants operated Association de Libertas (ADL),
an organization that conducted “constitutional history seminars throughout the
United States.” United States v. Ambort, 405 F.3d 1109, 1113 (10th Cir. 2005)
(quotation omitted).
The basic precept of the ADL’s seminars was that anyone can,
for federal income tax purposes, claim to be a “nonresident alien”
with no domestic-source income. ADL instructors told participants
that the Fourteenth Amendment changed the definition of citizenship
so that only non-white residents of the territorial United States were
actually “residents” for income tax purposes. Thus, Ambort and his
co-defendants told customers that they were to claim on their income
tax returns that they were nonresident aliens, regardless of their place
of birth, and to write “n/a” in the place where the tax forms asked for
the taxpayer’s social security number. They also told customers that
they could use IRS Form 1040X to file a corrected return for the
previous three tax years, assert nonresident status for each year, and
obtain a full refund of any taxes paid or withheld for that period.
Id. ADL charged a fee for assisting attendees complete tax forms, which included
a percentage of any refund obtained by the attendee. “Ambort was aware that the
ADL position was not accepted law, and that the IRS had rejected it. He was
aware that tax returns submitted by numerous ADL clients had been returned as
frivolous by the IRS and had incurred penalties.” Id.The government indicted Ambort, and a jury convicted him, on sixty-nine
counts of aiding and assisting the preparation of false tax returns in violation of
26 U.S.C. § 7206(2), and on one count of conspiring to defraud the United States
-2-
in violation of 18 U.S.C. § 371. After an unsuccessful direct appeal, Ambort
moved the district court for § 2255 relief.
In the § 2255 motion, Ambort advanced numerous arguments, many of
which are not altogether clear to us. The following five arguments from that
motion appear to be relevant to Ambort’s request for a COA: (1) the trial judge
improperly restricted his good-faith defense; (2) the government failed to prove
that refund claims must have legal support; (3) “the statements [about residency]
were . . . the truthful grounds upon which the [refund] claims were based,” R.,
Doc. 1 at 19; (4) he was misled by Supreme Court precedent, tax statutes, tax
regulations, and tax forms into believing that his actions were lawful; and (5) trial
counsel was ineffective because he would not pursue Ambort’s legal strategies,
such as calling a co-defendant to testify on “the modes and procedures used by
the Crown of England to collect its revenues,” id. at 45.
The district court summarily denied the motion, stating that “[m]any of . . .
Ambort’s arguments were included or should have been included in his [direct]
appeal,” and that the remainder of his arguments were “entirely without merit.”
R., Doc. 5 at 1. The district court did not grant Ambort a COA.
D ISCUSSION
The granting of a COA is a jurisdictional prerequisite to appealing the
district court’s denial of a § 2255 motion. United States v. Chiquito, 526 F.3d
1310, 1312 (10th Cir. 2008). A COA may be issued “only if the applicant has
-3-
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “To make the requisite showing, [the applicant] must demonstrate
[that] reasonable jurists could debate whether (or, for that matter, agree that) the
[motion] should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Chiquito,
526 F.3d at 1312 (quotation omitted). To determine whether this standard has
been met, “this court undertakes a preliminary, though not definitive,
consideration of the legal framework applicable to each of [the] claims.” Id.(quotation and brackets omitted). While the applicant need not establish that the
“appeal will succeed to be entitled to a COA, he must prove something more than
the absence of frivolity or the existence of mere good faith.” Id. (quotation
omitted).
We conclude that it is not reasonably debatable that the district court erred
in denying Ambort’s § 2255 motion or that Ambort’s issues warrant further
attention. First, Ambort’s arguments concerning his good-faith defense, the need
for a lawful basis in claiming a refund, and the use of “truthful grounds” to obtain
refunds were resolved by this court on direct appeal. See Ambort, 405 F.3d at
1114-17. Consequently, those arguments may not be resurrected in these § 2255
proceedings. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).
Second, Ambort’s argument about misleading tax laws and forms could
have been, but was not, raised on direct appeal. Ambort apparently seeks to avoid
-4-
the procedural bar that typically arises under these circumstances by asserting that
his appellate counsel was ineffective in omitting this argument from his direct
appeal. See United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004) (noting
that a § 2255 movant’s failure to raise arguments on direct appeal imposes a
procedural bar to habeas review unless he can show both good cause and actual
prejudice to his defense, or that failure to consider the argument will result in a
fundamental miscarriage of justice).
But to establish ineffective assistance, Ambort must show that counsel’s
performance was deficient and that there is a reasonable probability that the
deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,
694 (1984). We conclude that Ambort’s appellate counsel did not perform
deficiently in failing to raise a patently meritless legal issue. See Cargle v.
Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Specifically, there is nothing in
the federal tax laws and the forms he references that supports his view of the
Fourteenth Amendment or his misrepresentation of nonresident-alien status to
obtain refunds. See Ambort v. United States, 392 F.3d 1138, 1140-41 (10th Cir.
2004) (collecting cases). Consequently, Ambort’s argument about misleading tax
laws and forms is procedurally barred.
-5-
Finally, we find no merit to Ambort’s claim that trial counsel was
ineffective because he rejected Ambort’s legal strategies. 1 Disagreement over
trial strategy is generally not a basis for ineffective assistance of counsel.
See Strickland, 466 U.S. at 688-89. Moreover, Ambort’s strategies were legally
flawed. In particular, testimony about English revenue-collection procedures
would have been irrelevant, and therefore, inadmissible. See Fed. R. Evid. 402.
C ONCLUSION
Because Ambort has not “made a substantial showing of the denial of a
constitutional right,” § 2253(c)(2), we DENY his request for a COA and
DISMISS this appeal.
Ambort’s motion to proceed in forma pauperis is DENIED for lack of a
“reasoned, nonfrivolous argument on the law and facts in support of the issues
raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005). Ambort is ordered to pay the entire appellate filing fee of $455.00
within thirty days of the date of this order.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
1
The procedural-bar rule does not apply to claims of ineffective assistance
of trial counsel, “whether or not the [defendant] could have raised the claim on
direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
-6-