United States v. Hardridge

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 07-5015
v. (N.D. Oklahoma)
STEPHEN RAM ONT HARDRID GE, (D.C. Nos. 06-CV-399-HDC and
00-CR-126-HDC)
Defendant-Appellant.
OR DER
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
Stephen Hardridge, a federal prisoner proceeding pro se, seeks a certificate
of appealability (“COA”) to appeal the district court’s order denying his 28
U.S.C. § 2255 petition to vacate, modify, or set aside his sentence. In his § 2255
petition, M r. Hardridge alleged (1) the presentation of perjured testimony during
his trial created constitutional error and also constituted prosecutorial misconduct,
and (2) his trial counsel was ineffective for failing to object to that testimony.
M r. Hardridge also seeks leave to proceed in forma pauperis (“IFP”). For
substantially the same reasons set forth by the district court, we agree that M r.
Hardridge is not entitled to a CO A. W e therefore deny his motion to proceed IFP
and dismiss this matter.
I. BACKGROUND
A grand jury indicted M r. Hardridge, along w ith sixteen co-defendants,
charging participation in a drug distribution conspiracy spanning eight years. A
jury convicted M r. Hardridge of conspiracy to possess with intent to distribute
cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 846 and 21
U.S.C. § 841(a)(1). The district court sentenced M r. Hardridge to 292 months’
imprisonment, a 10-year term of supervised release, and a $10,000 fine. W e
affirmed M r. H ardridge’s conviction and sentence on direct appeal. United States
v. Hardridge, 100 Fed. Appx. 743 (10th Cir. 2004). After the Supreme Court
vacated our decision and remanded it in light of United States v. Booker, 543 U.S.
220 (2005), w e reaffirmed M r. H ardridge’s conviction and sentence. United
States v. Hardridge, 139 Fed. Appx. 47 (10th Cir. 2005). M r. Hardridge timely
filed a § 2255 motion.
II. DISCUSSION
In order to obtain a COA, M r. Hardridge must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make
this showing “by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be
debatable even though every jurist of reason might agree, after the COA has been
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granted and the case has received full consideration, that [the] petitioner will not
prevail.” Id. at 338.
M r. H ardridge contends that the government knowingly permitted two
witnesses, Jennifer Natale and Netha Taylor, to give perjured testimony regarding
drug transactions with him that did not take place. According to M r. H ardridge,
both witnesses falsely testified that he was involved in certain deliveries of
cocaine in August, September, and October 2000. M r. Hardridge maintains his
participation was impossible because he was incarcerated during these months.
The district court examined and rejected M r. Hardridge’s arguments that
the government knowingly presented perjured testimony. The disputed testimony
involved transactions that took place in 1999, not 2000. Although M s. Taylor
did testify that she was involved in the transport of cocaine in October and
November 2000, she did not identify the recipient of these deliveries. The district
court also rejected M r. Hardridge’s contention that the use of this testimony
violated his right to a fair trial or constituted prosecutorial misconduct because he
did not raise this issue in his direct appeal.
Because M r. Hardridge’s claim regarding perjured testimony failed on the
merits, the district court concluded that his related ineffective assistance of
counsel claim, which was based on his counsel’s failure to object to this
testimony, also failed. M oreover, the district court noted that counsel did in fact
raise a similar but unsuccessful objection to the presentence report that stated that
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M r. Hardridge “could not have been responsible for large amounts of drugs as
maintained in the presentence investigation report” “because he was in custody
during much of the ongoing conspiracy.” Dist. Ct. Order at 5, filed Jan. 12, 2007.
Furthermore, M r. H ardridge also unsuccessfully raised this claim on direct appeal.
Here, for substantially the same reasons set forth in the district court’s
order, we conclude that M r. Hardridge’s challenges lack merit and his counsel
was not ineffective for failing to raise them.
III. CONCLUSION
Accordingly, we DENY M r. Hardridge’s request for a COA, DENY his
motion to proceed IFP, and DISM ISS the matter.
Entered for the Court,
ELISABETH A. SHUM AKER, Clerk
By:
Deputy Clerk
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