United States v. Baldwin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 30, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6215
(D.C. Nos. 5:17-CV-00834-C and
DAVID CHARLES BALDWIN, II, 5:15-CR-00245-C-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
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David Charles Baldwin II, a federal prisoner appearing pro se, seeks a certificate
of appealability (COA) under 28 U.S.C. § 2253(c)(1) to challenge the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. 1 He
also moves to proceed in forma pauperis (IFP). We deny him a COA and we deny his
IFP motion.
*
This order is not binding precedent, except under the doctrines of law of the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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We liberally construe pro se litigants’ pleadings, holding them to “a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21
(1972)). Though we can’t “assume the role of advocate,” we’ll excuse citation gaps,
untangle confused legal theories, and overlook poor syntax. Id.
BACKGROUND
On November 18, 2015, a federal grand jury indicted Baldwin for sixteen offenses
related to his participation in a steroid-distribution and money-laundering conspiracy.
Baldwin retained counsel, who approached the government and secured a plea
agreement. Had Baldwin carried through with the plea agreement, he would have pleaded
guilty to Count 1 of the indictment, drug conspiracy, a violation of 21 U.S.C. § 846, and
Count 4 of the indictment, money-laundering conspiracy, a violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i). As part of the agreement, Baldwin would have
had to forfeit $3,202,126.54 as proceeds of his illegal activity. But Baldwin decided
against proceeding with the plea agreement, telling counsel “that he wanted to contest the
forfeiture amount in the agreement.” R. at 133. So counsel informed him that to contest
the forfeiture amount, he “could enter a plea to all counts and contest” it “with the judge
at sentencing.” Id.
Before Baldwin pleaded guilty, counsel “discussed with him possible
enhancements that could affect his advisory Sentencing Guideline range.” Id. at 134.
Baldwin then pleaded guilty to all sixteen counts without an underlying plea deal. When
asked on his guilty-plea petition if any promise had been made by anyone that caused
him to plead guilty aside from a plea agreement, Baldwin checked a space labeled “No.”
Id. at 42. After Baldwin pleaded guilty, counsel again discussed with him possible
sentencing enhancements.
Before sentencing, counsel met with the Assistant United States Attorney (AUSA)
assigned to Baldwin’s case and other officials to discuss “the evidence that would be
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presented at the sentencing in regard to forfeiture.” Id. at 134. During the meeting, it soon
became clear to counsel “that the charged amount of forfeiture . . . was millions of dollars
less” than the government could have pursued and proven. Id. And “[i]n light of that
information,” Baldwin agreed to the charged forfeiture amount. R. at 134.
Baldwin’s probation officer compiled his presentence investigation report, which
included several recommended sentencing-guideline enhancements including
§§ 2D1.1(b)(1), (7), (9), (12), (15), 2S1.1(b)(2)(B), (b)(3), and 3B1.1(a) of the sentencing
guidelines. U.S. Sentencing Guidelines Manual (U.S.S.G.) §§ 2D1.1(b)(1), (7), (9), (12),
(15), 2S1.1(b)(2)(B), (b)(3), and 3B1.1(a) (U.S. Sentencing Comm’n 2016). Baldwin
objected to the following enhancements: (1) § 2D1.1(b)(1), possessing a firearm;
(2) § 2D1.1(b)(9), distributing an anabolic steroid to an athlete; (3) § 2D1.1(b)(12),
maintaining a residence for the purpose of manufacturing or distributing a controlled
substance; (4) § 2S1.1(b)(3), sophisticated money laundering; and (5) § 3B1.1(a), a role
adjustment. Because “Baldwin used an internet messaging board to sell” steroids, and
because his counsel “believed the enhancement applied,” counsel didn’t object to the
§ 2D1.1(b)(7) enhancement. R. at 134. Similarly, because “Baldwin imported all of his
[steroids] from Hong Kong or China and he had no source of income” other than selling
steroids for “multiple years,” counsel didn’t object to the § 2D1.1(b)(15) enhancement.
Id. at 135. And because Baldwin pleaded guilty to 18 U.S.C. § 1956, his counsel didn’t
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object to the § 2S1.1(b)(2)(B) enhancement. The district court sentenced Baldwin to 84
months of imprisonment, to be served concurrently. 2 Baldwin never filed a direct appeal.
On August 3, 2017, Baldwin filed a 28 U.S.C. § 2255 motion to vacate, set aside,
or correct his sentence. Baldwin made five arguments in his motion. First, he argued he
had received ineffective assistance of counsel, because (a) counsel told him that the
AUSA would drop the § 2D1.1(b)(1) firearm enhancement, (b) counsel told him that if he
didn’t “take the plea deal the AUSA was offering we would plead guilty to all counts and
have a hearing with a judge only,” id. at 95, and (c) counsel said he would object to the
sentencing enhancements. Second, he argued that the sentencing court had improperly
enhanced his sentence using § 2D1.1(b)(1), the firearm enhancement. Third, he argued
that the sentencing court had improperly piled on enhancements to double his sentencing-
guideline range. Fourth, he argued the sentencing court had improperly enhanced his
sentence using § 2D1.1(b)(9), because he didn’t “solicit to or distribute” steroids “to any
known athletes.” Id. at 102. And fifth, he argued that the sentencing court had improperly
enhanced his sentence under § 2D1.1(b)(12), because his residence “was not a special
‘premises’ maintained to receive, or distribute the product of his crime.” Id.
The government responded to Baldwin’s motion, dividing Baldwin’s arguments
into two categories: (1) ineffective-assistance-of-counsel claims; and (2) challenges to his
sentence. To answer Baldwin’s ineffective-assistance-of-counsel claims, the government
provided an affidavit from Baldwin’s formerly retained counsel. In that affidavit, counsel
2
The Presentence Investigation Report wasn’t furnished in the record on
appeal.
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stated that he never had an agreement with the AUSA to drop the § 2D1.1(b)(1) firearm
enhancement. Counsel also stated that “if [Baldwin] did not want the plea offer from the
Government he could enter a plea to all counts and contest” the forfeiture amount “with
the judge at sentencing.” Id. at 133. Finally, counsel explained which enhancements he
had objected to and which he hadn’t and why.
The government then argued that Baldwin’s failure to file a direct appeal
procedurally barred his ability to challenge his sentence. And, it argued, Baldwin failed to
show either cause for failing to file that appeal or that a fundamental miscarriage of
justice would occur if the court didn’t address his claim. Specifically, the government
noted that Baldwin’s § 2255 motion didn’t “mention[] the word appeal, let alone show[]
cause for not pursuing an appeal as required.” R. at 127. Baldwin replied to the
government’s response, now alleging that he “was never offered a direct appeal and
therefore [was] denied a direct appeal.” Id. at 139. And he asserted he had received
ineffective assistance “when counsel failed to file Baldwin’s appeal in the Tenth Circuit
of Appeals, after Baldwin asked for such appeal.” Id.
The district court denied Baldwin’s § 2255 motion. On Baldwin’s ineffective-
assistance claims, the court concluded as follows: (1) because counsel’s affidavit and
Baldwin’s guilty plea petition both established that no agreement to drop the
§ 2D1.1(b)(1) firearm enhancement existed with the AUSA, Baldwin couldn’t show
deficient performance under Strickland v. Washington, 466 U.S. 668, 688 (1984);
(2) Baldwin couldn’t show that he would have chosen to go to trial if he had known his
counsel wouldn’t challenge the forfeiture amount with the judge; and (3) because counsel
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had objected to sentencing enhancements where appropriate, Baldwin hadn’t received
ineffective assistance. The district court also determined that Baldwin’s challenges to his
sentencing enhancements were procedurally barred because he failed to raise them in a
direct appeal. The court also denied Baldwin a COA and denied his IFP motion. Baldwin
now appeals.
DISCUSSION
Before he may appeal, Baldwin must obtain a COA. 28 U.S.C. § 2253(c)(1). To
obtain a COA, a petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant
must demonstrate ‘that reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th
Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the relevant
legal questions are whether (1) Baldwin received ineffective assistance of counsel, and
(2) whether we may consider his challenges to his sentence. After answering these
questions, we address Baldwin’s request for an evidentiary hearing and his IFP motion.
I. Ineffective Assistance
Ineffective assistance is shown where (1) “counsel’s representation fell below an
objective standard of reasonableness,” Strickland, 466 U.S. at 688, and (2) counsel’s
deficient performance prejudiced the defendant, id. at 692. If a movant fails to satisfy
either prong, his ineffective-assistance claim fails. Id. at 697. On appeal, Baldwin makes
four ineffective-assistance claims: (1) that he asked counsel to file a direct appeal, and his
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counsel didn’t; (2) that counsel advised him that the AUSA would drop the § 2D1.1(b)(1)
enhancement; (3) that counsel caused him to enter an unknowing and involuntary guilty
plea; and (4) that counsel failed to explain what enhancements the court would likely
impose.
First, Baldwin claims that he received ineffective assistance, because he told
counsel to file a direct appeal and counsel didn’t. Baldwin didn’t make this argument in
his initial § 2255 motion. He made it in his reply to the government’s response to his
§ 2255 motion, the latter of which included counsel’s affidavit. Rule 7(c) of the Rules
Governing Section 2255 Proceedings requires the district court to give a party to a § 2255
motion “against whom [] additional materials are offered an opportunity to admit or deny
their correctness.” So because the government in this case attached counsel’s affidavit to
its response, Rule 7(c) required the court to allow Baldwin to admit or deny the
correctness of the facts as asserted by counsel. United States v. Hill, 336 F. App’x 832,
834 (10th Cir. 2009). The district court did so. But Rule 7(c) permitted Baldwin only to
admit or deny the contents of counsel’s affidavit, not to raise new arguments beyond
those stated in his § 2255 motion. Baldwin waived this argument by failing to raise it
until his reply to the government. Cf. United States v. Pickel, 863 F.3d 1240, 1259 (10th
Cir. 2017) (determining that when a party “makes [an] argument for the first time in his
reply brief,” it is waived). Because Baldwin waived this argument, it deserves no
encouragement to proceed further.
Second, Baldwin can’t show deficient performance where he claims counsel told
him the AUSA promised to drop the § 2D1.1(b)(1) firearm enhancement. Counsel denies
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having told Baldwin that such an agreement existed. And when asked on his guilty-plea
petition whether “any promise” had been made “by anyone that cause[d]” him to plead
guilty aside from a plea agreement, Baldwin marked a box labeled, “No.” R. at 42.
Baldwin provides no other evidence to the contrary, so the district court’s decision on this
point isn’t debatable.
Baldwin’s third and fourth arguments fail “because []he did not raise them before
the district court in [his] original § 2255 motion.” United States v. Allen, 497 F. App’x
853, 854 (10th Cir. 2012). So these arguments aren’t deserving of encouragement to
proceed further.
II. Sentencing Enhancements
Baldwin also asserts that the sentencing court improperly enhanced his sentence.
But § 2255 isn’t an avenue to test the legality of issues which should have been raised in
a direct appeal. United States v. Walling, 982 F.2d 447, 448 (10th. Cir. 1992) (quoting
United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987)). Baldwin’s “failure to address
this issue in [a] direct appeal bars review unless he can show cause and resulting
prejudice.” Id. at 448–49. Baldwin didn’t attempt to show cause and prejudice for failing
to raise these challenges to his sentencing enhancements in a direct appeal before the
district court and he fails to do so now. And “[w]here a plain procedural bar is present
and the district court is correct to invoke it to dispose of the case, a reasonable jurist
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could not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484.
III. Evidentiary Hearing
Baldwin argues that the district court should have granted him an evidentiary
hearing over whether the sentencing court improperly enhanced his sentence. “We review
the district court’s refusal to hold an evidentiary hearing for an abuse of discretion.”
United States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (quoting United States v.
Harms, 371 F.3d 1208, 1210 (10th Cir. 2004)). An evidentiary hearing is required for a
§ 2255 motion “[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Because Baldwin’s
arguments challenging his sentencing enhancements are procedurally barred, the records
of the case conclusively show that he isn’t entitled to relief. So the district court didn’t
abuse its discretion by failing to hold an evidentiary hearing.
IV. IFP Motion
We conclude that Baldwin hasn’t asserted a reasoned, non-frivolous argument on
appeal, so we deny his IFP motion. McIntosh v. United States Parole Comm’n, 115 F.3d
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809, 812–13 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991)).
CONCLUSION
For the above reasons, we deny Baldwin a COA, deny his IFP motion, and dismiss
this appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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