United States v. Isabella

Appellate Case: 22-1101 Document: 010110813818 Date Filed: 02/16/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 16, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1101
(D.C. Nos. 1:21-CV-00973-CMA &
RANDE BRIAN ISABELLA, 1:14-CR-00207-CMA-1)
(D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Rande Isabella, proceeding pro se, requests a certificate of appealability (“COA”)
to appeal from the district court’s denial of his amended 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence. We deny a COA and dismiss this matter.
BACKGROUND
A jury convicted Mr. Isabella of two charges: persuading and attempting to
persuade a minor (“S.F.”) to engage in sexual activity for which any person could be
charged with a criminal offense, in violation of 18 U.S.C. § 2422(b) (Count 1), and
attempting to persuade S.F. to produce child pornography, in violation of 18 U.S.C.
*
This order is not binding precedent except under the doctrines of law of the case,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.
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§ 2251(a) and (e) (Count 2). The jury acquitted him of two other charges based on
separate interactions with an undercover officer. The district court sentenced him to two
concurrent sentences of 216 months of imprisonment. This court affirmed, see United
States v. Isabella, 918 F.3d 816, 849 (10th Cir. 2019), and the Supreme Court denied a
writ of certiorari, see Isabella v. United States, 140 S. Ct. 2586 (2020).
A year later, Mr. Isabella filed a § 2255 motion. After the United States answered,
he moved to amend his § 2255 motion, which the United States opposed. The district
court took up the motion to amend immediately before deciding the § 2255 claims. It
granted the motion to amend in part and denied it in part, holding that the claims in the
proposed amended motion generally related back to the original § 2255 motion, but that
any sub-claims that did not relate back to the original motion would be time-barred.
Although it held that one claim was procedurally defaulted, the district court denied most
of the § 2255 claims on the merits.
Mr. Isabella then filed a motion to alter or amend the judgment under Federal Rule
of Civil Procedure 59(e). The district court held Mr. Isabella had not identified a change
in the controlling law, any previously unavailable new evidence, or clear error in the
court’s decision, and the court saw no manifest error in its denial of the § 2255 motion.
DISCUSSION
I. COA Standards
Mr. Isabella must obtain a COA to appeal from the district court’s denial of his
§ 2255 motion, see 28 U.S.C. § 2253(c)(1)(B), and his Rule 59(e) motion, cf. Spitznas v.
Boone, 464 F.3d 1213, 1225 (10th Cir. 2006) (applying COA requirement to appeal from
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an order denying a Federal Rule of Civil Procedure 60(b) motion). To obtain a COA, he
must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2).
“[A] substantial showing . . . includes showing 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). Where the district court denied claims on the merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Id. But where the district court denied claims
on procedural grounds, the petitioner must demonstrate that reasonable jurists “would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and . . . whether the district court was correct in its procedural ruling.” Id.As a pro se litigant, Mr. Isabella is entitled to a liberal construction of his filings.
See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The
court, however, does not act as his attorney. See id.II. Arguments for COA
A. Government’s Failure to Answer Amended § 2255 Motion
Mr. Isabella moved to amend his § 2255 motion after the United States answered
his original motion. The district court decided the motion to amend immediately before
addressing the claims in the amended § 2255 motion, without directing the United States
to answer the amended § 2255 motion. Mr. Isabella’s Rule 59(e) motion pointed out that
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the United States had not answered his amended § 2255 motion, but the district court
denied the Rule 59(e) motion.
Before this court, Mr. Isabella argues that the denial of his Rule 59 motion is
debatable. He contends that the government’s failure to respond denied him a
“meaningful opportunity to be heard by reply without incorporating by reference his
original (now defunct) pleading under §[ ]2255.” Aplt. Opening Br./Appl. for COA,
CM/ECF p. 8 (capitalization omitted). Reasonable jurists, however, would not debate
this issue. Mr. Isabella has not made a substantial showing that the district court denied
him a constitutional right when it decided his amended § 2255 motion without directing
the United States to file a second answer.
B. Claims Alleging Dismissal or Acquittal of Completed Aspect of Count 2
1. Relevant Background
Count 2 of the indictment, involving production of child pornography, charged
Mr. Isabella both with violating § 2251(a) and attempting to violate § 2251(a). After the
jury was empaneled but before the parties made their opening statements, the district
court held a jury-instruction conference. At that conference, the prosecutor informed the
court that S.F. had said that Mr. Isabella did not play a role in the creation of a
photograph colloquially known as “the torso pic,” which was the only evidence to
support a completed offense of producing child pornography in violation of § 2251(a).
The United States therefore requested that the court instruct the jury only as to the
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attempt aspect of Count 2.1 The district court interpreted the request as a motion to
dismiss the portion of Count 2 that charged a completed crime. Mr. Isabella objected,
stating that the government was improperly attempting to materially amend the
indictment. It is not clear whether the district court dismissed the completed aspect of
Count 2, but the court did instruct the jury only as to the attempt aspect of Count 2.
2. Claim 1
Claim 1 of the amended § 2255 motion argued that appellate counsel (who also
was Mr. Isabella’s trial counsel) was ineffective for failing to raise a “dead bang winner
1
The record indicates some confusion about the series of underlying events,
particularly the date on which the government requested the court instruct the jury only as
to the attempt aspect of Count 2. Our review identifies the following events:
 On September 14, 2016, the district court held a pre-trial conference. The
court and parties discussed a recent report indicating that Mr. Isabella had
not been involved in producing the torso pic. But the government did not
then move to instruct the jury only as to the attempt aspect of Count 2.
 On September 19, the jury was empaneled and sworn.
 On September 22, the district court held a jury-instruction conference. It
was at this conference that the government moved that the jury be
instructed only as to the attempt aspect of Count 2.
 On September 26, the parties made their opening statements and the
government began presenting evidence.
Although not all the relevant documents appear in the record on appeal in this matter, we
take judicial notice of the district court’s docket and the transcripts of the September 14
and 26 conferences in the direct-appeal record. See United States v. Ahidley, 486 F.3d
1184, 1192 n.5 (10th Cir. 2007) (“[W]e may exercise our discretion to take judicial notice
of publicly-filed records in our court and certain other courts concerning matters that bear
directly upon the disposition of the case at hand.”).
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issue” arising from the government’s election to proceed only with the attempt aspect of
Count 2. R. Vol. 2 at 303 (internal quotation marks omitted). Mr. Isabella asserted that
because jeopardy had attached by the time of the jury-instruction conference, the district
court’s decision to instruct the jury only as to the attempt aspect of Count 2 acted as a
dismissal with prejudice or an acquittal of the completed aspect of Count 2. Noting that
Count 1 required the jury to find a predicate offense of production of child pornography,
Mr. Isabella contended that such dismissal or acquittal of completed production of child
pornography in Count 2 precluded the jury from finding the required predicate offense in
Count 1. He further asserted that the dismissal violated Federal Rule of Criminal
Procedure 48(a) and due process.2 And if counsel had raised those contentions on appeal,
he argued, the government would not have been able to prove the error harmless beyond
a reasonable doubt under Chapman v. California, 386 U.S. 18, 24 (1967). Accordingly,
he concluded, this court would have reversed his convictions.
The district court held that “[t]he Government’s election to pursue a conviction for
attempted production of child pornography did not automatically acquit Mr. Isabella of
the completed offense.” R. Vol. 2 at 502. It recognized that the indictment charged
Mr. Isabella with attempt as well as the completed offense, and stated, “because both the
completed and attempted crime were alleged in Count 2, it is illogical and impossible for
Mr. Isabella to have been both ‘acquitted’ of Count 2 and convicted by the jury of the
2
Rule 48(a) provides: “The government may, with leave of court, dismiss an
indictment, information, or complaint. The government may not dismiss the prosecution
during trial without the defendant’s consent.”
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same Count.” Id. As for the Rule 48(a) allegations, the court found “that this argument
has no merit because the Government’s decision to proceed on an attempt theory
occurred at a pre-trial conference, not during trial, and the Government did not dismiss
Count 2, let alone the indictment.” Id. at 503.
Ineffective-assistance claims are governed by Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, a defendant must show that (1) “counsel’s performance
was deficient,” and (2) “the deficient performance prejudiced the defense.” Id. at 687.
The performance prong requires a defendant to show “counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. The prejudice prong requires a
showing “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.
This court has recognized that “an appellate advocate may deliver deficient
performance and prejudice a defendant by omitting a dead-bang winner, even though
counsel may have presented strong but unsuccessful claims on appeal.” United States v.
Cook, 45 F.3d 388, 395 (10th Cir. 1995) (internal quotation marks omitted). A
“dead-bang winner . . . is an issue which was obvious from the trial record,” id., that
presented a reasonable probability of reversal on appeal, Neill v. Gibson, 278 F.3d 1044,
1057 n.5 (10th Cir. 2001) (clarifying that the Strickland standard of reasonable
probability of a different result applies in “dead-bang winner” situations, and abrogating
Cook to the extent it held otherwise).
Mr. Isabella is correct that in a jury trial, jeopardy attaches when a jury is
empaneled and sworn. See Serfass v. United States, 420 U.S. 377, 388 (1975). Here, the
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jury-instruction conference occurred after the jury was empaneled and sworn. It
therefore appears that the district court erred in stating that the government’s request to
proceed only on the attempt aspect of Count 2 came before trial. Nevertheless,
Mr. Isabella has not shown that reasonable jurists would debate whether appellate
counsel was ineffective in omitting a “dead-bang winner.”
Mr. Isabella has failed to demonstrate a reasonable probability that this court
would have reversed his convictions if appellate counsel had argued that the district court
erred in allowing the government not to proceed with the completed aspect of Count 2.
This court acknowledged that the government did not proceed with a completed violation
of § 2251(a), see Isabella, 918 F.3d at 824 n.2, but nonetheless it concluded the evidence
was sufficient to support conviction of an attempted violation of § 2251(a), see id. at
834-36. And although Mr. Isabella believes he could not have been convicted of a
completed or attempted violation of § 2422(b) if he were acquitted of a completed
violation of § 2251(a), he is incorrect.
The court instructed the jury for Count 1 that an element of a violation of
§ 2422(b) is that “Mr. Isabella knowingly persuaded, induced, enticed, or coerced SF to
engage in any sexual activity for which Mr. Isabella could be charged with a criminal
offense,” R. Vol. 1 at 568, or that for an attempted violation of § 2422(b), he “knowingly
attempted to” do so, id. at 569. One of the two possible qualifying sexual activities (and
the one the jury chose for both the completed and attempt aspects of Count 1) was
“[p]roduction of child pornography under federal law.” Id. at 568, 569, 594-95.
Mr. Isabella assumes that the government’s decision not to proceed with the completed
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violation of § 2251(a), after jeopardy attached, necessarily means that the jury could not
find production of child pornography was a qualifying sexual activity in connection with
Count 1. But no reasonable jurist would debate this issue. The jury did not have to find
that Mr. Isabella was involved in the production of the torso pic (or any other completed
violation of § 2251(a)) to conclude that he attempted to persuade, induce, entice, or
coerce S.F. to engage in the production of child pornography.
In addition, although Mr. Isabella asserts the government could not have satisfied
the Chapman standard, he does not suggest any meaningful way in which omitting the
completed aspect of Count 2 harmed him. He asserts that his “powerful digital forensic
evidence would have caused grave doubt about [his] involvement in producing child
pornography with S.F. The dismissal rendered that evidence useless to other charges.”
Aplt. Opening Br./Appl. for COA, CM/ECF p. 12. But the government’s decision not to
proceed on the completed aspect of Count 2 relieved Mr. Isabella of the need to defend
against a serious charge and any uncertainty about the jury’s verdict. Further, the jury
was informed, by S.F.’s own testimony, that Mr. Isabella played no role in the production
of the torso pic. See Isabella, 918 F.3d at 826. In these circumstances, we cannot see
that reasonable jurists would debate whether Mr. Isabella was prejudiced by not having to
defend against the charge of a completed violation of Count 2.
For these reasons, we cannot conclude that reasonable jurists would debate
whether the acquittal issue was a “dead-bang winner.” We deny a COA on Claim 1.
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3. Claims 2, 3, 5, and 6
Claims 2, 3, 5, and 6 also rest on the theory that having been acquitted of the
completed aspect of Count 2, Mr. Isabella could not have been convicted of either
Count 1 or the attempt aspect of Count 2.3 Having rejected this theory in considering
Claim 1, the district court also rejected these claims.
In seeking a COA, Mr. Isabella objects that the district court continued to rely on
the finding that the government requested to proceed with the attempt aspect of Count 2
before trial, rather than during trial. As discussed, however, this finding (even if
incorrect) does not mean that reasonable jurists would debate Mr. Isabella’s theory that
acquittal on the completed aspect of Count 2 means he could not be convicted under
Count 1 or the attempt aspect of Count 2. Because Claims 2, 3, 5, and 6 rely on
Mr. Isabella’s incorrect theory, no reasonable jurist would debate the rejection of these
claims. We deny a COA on Claims 2, 3, 5, and 6.
C. Remaining Arguments
Mr. Isabella further requests a COA on Claims 7, 8, 9, 10, 14, and 16. Having
carefully reviewed Mr. Isabella’s opening brief and application for COA, the record, and
3
Claim 2 alleged trial counsel was ineffective for failing to object when the court
dismissed the completed aspect of Count 2, but then allowed the jury to rely upon
production of child pornography as the predicate conduct for Count 1. Claim 3 alleged
appellate counsel was ineffective for failing to challenge the special verdict form, which
listed the possible predicate offenses. Claim 5 alleged appellate counsel was ineffective
for failing to argue that Mr. Isabella was subjected to double jeopardy when he was
acquitted of completed production of child pornography in Count 2 but convicted of it as
the predicate offense for Count 1. Claim 6 alleged Mr. Isabella was impermissibly
“adjudicated ‘not guilty’ and ‘guilty’ by the same conduct.” R. Vol. 2 at 327.
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the relevant law, we deny a COA on these claims because reasonable jurists would not
debate the district court’s decision to deny them.
Claim 7 alleged that this court applied the wrong standard for evaluating the
sufficiency of the evidence on direct appeal. But no reasonable jurist would debate this
claim; this court identified the appropriate standard, see Isabella, 918 F.3d at 830, and
Mr. Isabella’s disagreement with the result does not mean that the court applied an
improper standard. Further, one panel generally cannot overrule a prior binding decision
by another panel. See United States v. White, 782 F.3d 1118, 1126-27 (10th Cir. 2015).
Claim 8 alleged the jury instructions unconstitutionally amended the indictment by
omitting the words “such,” “if,” and “that,” causing the district court to lose jurisdiction.
Claim 9 alleged that appellate counsel was ineffective for failing to raise that argument
on appeal. But no reasonable jurist would debate the district court’s determination that
the omission of “such,” “if,” and “that” did not constructively amend the indictment or
cause a variance. It follows that no reasonable jurist would debate whether appellate
counsel was ineffective in omitting this argument from the direct appeal. Further,
reasonable jurists would not debate the decision to analyze the allegations of Claim 8
only through the lens of whether appellate counsel was ineffective for omitting the
argument. See Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that counsel’s
failure to make an argument does not establish cause unless counsel was ineffective).
Claims 10 and 16 alleged that appellate counsel was ineffective for failing to
challenge the constitutionality, as applied to Mr. Isabella, of § 2251(a), 18 U.S.C.
§ 2256(2) (defining “sexually explicit conduct”), and 18 U.S.C. § 2256(8) (defining
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“child pornography”). These claims, however, essentially attempt to relitigate the
sufficiency of the evidence, which already was decided on direct appeal. A principal
thrust of Mr. Isabella’s argument is that this court erred in deciding his direct appeal, and
he “requests the Tenth Circuit Court of Appeals reconsider its position” regarding the
interpretation of § 2251(a). Aplt. Opening Br./Appl. for COA, CM/ECF p. 30. As stated,
however, one panel of this court cannot overrule a prior binding decision by another
panel. See White, 782 F.3d at 1126-27. Accordingly, no reasonable jurist would debate
the district court’s rejection of these claims.
Finally, Claim 14 asserted that because there was “no legitimate factual or legal
basis” for Mr. Isabella’s convictions, he would not have been convicted absent
prosecutorial misconduct. R. Vol. 2 at 381. Before this court, Mr. Isabella complains
that his allegations of prosecutorial misconduct went unanswered and unaddressed by the
district court. The district court considered the claim to be another attempt to argue the
sufficiency of the evidence of completed production of child pornography. In the
circumstances, no reasonable jurist would debate the district court’s decision not to
analyze each contention in Claim 14. Moreover, Mr. Isabella would have had to
overcome a procedural default to pursue the misconduct claims. But no reasonable jurist
would debate whether his appellate counsel was ineffective for failing to argue
prosecutorial misconduct; he failed to establish a reasonable probability that the argument
would have resulted in reversal on appeal.
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CONCLUSION
We deny a COA and dismiss this matter. We grant Mr. Isabella’s motion to
proceed without prepayment of costs and fees. We deny as moot his motion to rescan his
corrected amended combined opening brief and application for COA, because the
document already was rescanned and is complete in CM/ECF.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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