United States v. Carrier

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-8051
NORCEES BEN CARRIER, (D.C. No. 97-CV-102)
(D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
Defendant Norcees Ben Carrier seeks a certificate of appealability to appeal the
district court’s decision denying his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. We conclude Defendant has not made a substantial showing of the
denial of a constitutional right. Accordingly, we deny his request for a certificate of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
appealability and dismiss the appeal.
Defendant is an inmate at FCI-Englewood where he is serving 190 months for
multiple counts of sexual abuse in violation of 18 U.S.C. §§ 2244(c), 2244(a)(1) and
2244(b). After sentencing on the above counts, Defendant directly appealed to this court
arguing that the district court’s decision to allow testimony via a two-way closed circuit
television violated the Confrontation Clause of the Sixth Amendment. We affirmed his
conviction. United States v. Carrier, 9 F.3d 867 (10th Cir. 1993). Defendant then sought
a writ of certiorari, which the United States Supreme Court denied. Carrier v. United
States, 511 U.S. 1044 (1994).
On April 28, 1997, Defendant filed a motion pursuant to 28 U.S.C. § 2255requesting that the district court relieve him of the remainder of his 190 month sentence.
In support of his motion, Defendant restated his position that the closed circuit television
testimony violated his constitutional rights and, for the first time, argued that his
convictions were based on coerced confessions, that his trial counsel rendered ineffective
assistance regarding pre-trial discovery matters and that he was denied proper access to
the federal courts. In a clear and well-reasoned memorandum opinion, the district court
denied Defendant’s § 2255 motion. Defendant then requested that the district court grant
a certificate of appealability so that he could appeal the court’s decision. The district
court denied his request. Defendant now asks us to grant the certificate of appealability
and reach the merits of his appeal.
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In support of his request for a certificate of appealability, Defendant essentially
reiterates the arguments he raised before the district court. We have thoroughly reviewed
the Defendant’s brief, his application for a certificate of appealability, the district court’s
order, and the entire record before us. Defendant has not demonstrated that the district
court’s disposition of his § 2255 motion is debatable, reasonably subject to a different
outcome on appeal, or otherwise deserving of further proceedings. See Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983) (substantial showing of denial of constitutional
right shown by demonstrating that: (1) issues raised are debatable among jurists; (2) an
appellate court could resolve issues differently, or (3) the questions deserve further
proceedings.). Thus, we conclude Defendant has not made a substantial showing of the
denial of a constitutional right, DENY his request for a certificate of appealability and
DISMISS the appeal. Petitioner’s motion for leave to file a supplemental brief is
GRANTED.
APPEAL DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3