Fleming v. Evans

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 30, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
KIPTON E. FLEMING,
Petitioner-Appellant,
v. Nos. 10-6173, 12-6248
(D.C. No. 5:05-CV-00690-C)
EDWARD EVANS,
(W.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, EBEL and TYMKOVICH, Circuit Judges.
Defendant-Appellant Kipton Fleming, an Oklahoma state prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) in order to appeal the denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. He also seeks a COA to
appeal the district court’s denial of his requests for appointment of counsel and for leave
to proceed in forma pauperis (“IFP”). We GRANT Fleming’s renewed request to
*
This order is not binding precedent except under the doctrines of law of the case,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.
proceed IFP; however, having carefully reviewed the record and Fleming’s arguments,
we conclude that Fleming has failed to make a substantial showing of the denial of a
constitutional right. We therefore DENY his requests for a COA. We also DENY his
renewed request for appointment of counsel and DISMISS this appeal.
BACKGROUND
In 2001, Fleming was sentenced to thirty years’ imprisonment for felony assault
and battery with a dangerous weapon and one year of time served for misdemeanor
domestic abuse assault and battery. See Fleming v. Evans, 481 F.3d 1249, 1252 (10th
Cir. 2007) (summarizing Oklahoma state-court proceedings). Fleming filed his federal
habeas petition in the United States District Court for the Western District of Oklahoma
in June 2005. In that petition, Fleming
[r]aise[d] several constitutional claims related to each count of conviction.
Specifically, he claim[ed] that he received ineffective assistance of counsel
on both counts, that his convictions violate[d] the Double Jeopardy Clause,
and that he was denied due process of law due to the state’s use of perjured
testimony at trial and its concealment of a plea agreement struck with one
of its primary witnesses.
Fleming, 481 F.3d at 1252. In March 2006, the district court dismissed Fleming’s entire
petition as time-barred and denied his application for COA. Id.Fleming then sought a COA from this Court. Id. In April 2007, we granted
Fleming’s application for a COA, vacated the district court’s decision, and remanded for
an evidentiary hearing on the issue of equitable tolling and, if necessary, further
proceedings regarding Fleming’s constitutional claims. Id.2
On remand, the district court appointed counsel to represent Fleming throughout
the proceedings.1 After the magistrate judge held an evidentiary hearing, the district
court adopted in full the magistrate’s order recommending that Fleming was entitled to
equitable tolling on his claims related to his felony conviction, but not on his claims
related to his misdemeanor conviction.2 From October 2009 to June 2010, the magistrate
judge issued piecemeal recommendations advising the district court to deny on the merits
each of Fleming’s claims related to his felony conviction. The district court adopted all
of the magistrate’s recommendations in full.3 It dismissed Fleming’s petition on June 30,
2010.
Fleming filed an appeal through retained counsel. However, counsel failed to file
the required preliminary documents, and the appeal was dismissed for lack of
prosecution. In June 2012, pursuant to Fleming’s pro se motion, the appeal was
reinstated. Fleming then filed pro se requests with the district court for appointment of
1
The district court first appointed Fred Staggs, an attorney from the Office of the
Federal Public Defender (“OFPD”), to represent Fleming. Unsatisfied with Staggs’
performance, Fleming sought and received appointment of substitute counsel from
OFPD, Joseph Wells. Fleming later decided to replace Wells with retained counsel, Paul
Faulk.
2
At this juncture, Fleming does not appear to take issue with the district court’s
conclusion that he was not entitled to equitable tolling on his claims relating to his
misdemeanor conviction.
3
Accordingly, subsequent references in this Order to the district court’s reasoning
refer to both the district court’s independent reasoning as well as the magistrate judge’s
recommendations adopted by the district court.
3
counsel and for leave to proceed IFP, both of which the district court denied. Fleming
now seeks a COA to appeal those rulings, as well as the district court’s denial of his
claims on the merits. He also renews his requests for appointment of counsel and for
leave to proceed IFP.
DISCUSSION
A. Standard for granting a COA
This Court lacks jurisdiction to consider the merits of a habeas appeal unless we
grant the applicant a COA. 28 U.S.C. § 2253(c)(1)(A). We issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. §
2253(c)(2). “This standard requires an applicant to show 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 . . . .” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
B. Appointment of counsel and leave to proceed IFP
a. Fleming’s appeal of the district court’s denial of his requests for
appointment of counsel and leave to proceed IFP
Fleming appeals the district court’s denial of his requests for appointment of
counsel and for leave to proceed IFP. Construing Fleming’s pro se briefing liberally, see
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we understand Fleming to argue
that the district court erred when it (1) denied Fleming’s request to proceed IFP before
4
providing Fleming “prior notice” about his eligibility for appointed counsel; (2) denied
Fleming’s request to proceed IFP without first determining Fleming’s eligibility for
appointment of new counsel; (3) denied Fleming’s request to proceed IFP, even though
Fleming had no counsel to make his “reasoned, nonfrivolous” arguments for him; (4)
denied Fleming’s request for new counsel before addressing Fleming’s prior counsel’s
negligence, abandonment, and ill will toward Fleming; and (5) denied Fleming’s request
for new counsel to assist with his application for COA, especially because this Court
never allowed Fleming’s prior counsel to withdraw, see Tenth Cir. R. 46.4(A), and his
prior counsel handled this appeal inadequately.
We need not address Fleming’s first three arguments related to the district court’s
refusal to grant him leave to proceed IFP, because our decision to grant IFP moots that
issue. As to Fleming’s fourth and fifth claims—those relating to Fleming’s appeal of the
district court’s refusal to appoint counsel to assist him with his reinstated appeal—outside
of extraordinary circumstances not present here, see Martinez v. Ryan, 132 S. Ct. 1309(2012), there is no constitutional right to counsel beyond the appeal of a criminal
conviction. See Coleman v. Thompson, 501 U.S. 722 (1991). Indeed, “[t]he
appointment of counsel in a habeas action lies within the sound discretion of the habeas
court unless the case is so complex that the denial of counsel would amount to the denial
of due process.” Holloway v. Hatch, 250 F. App’x 899, 901 (10th Cir. 2007)
(unpublished) (internal quotation marks omitted); accord Swazo v. Wyo. Dept. of Corr.
State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994).
5
Fleming has not argued that his case is “so complex that the denial of counsel
would amount to the denial of due process,” see Holloway, 250 F. App’x at 901, and we
would have rejected such an argument had he advanced it. Nor do we discern, from the
district court’s failure explicitly to address Faulk’s performance before denying
Fleming’s Motion for Appointment of Counsel, any other “fundamental unfairness
impinging on due process rights.”4 See Long v. Shillinger, 927 F.2d 525, 527 (10th
Cir.1991). And, as explained in greater detail below, Faulk’s failure to withdraw as
Fleming’s counsel in accordance with this Court’s appellate rules did not trigger a new
constitutional right to counsel. See Tenth Cir. R. 46.4. Therefore, we reject Fleming’s
claim that the district court should have appointed counsel for him here. See Espinoza v.
Estep, 276 F. App’x 781, 784 (10th Cir. 2008) (unpubished) (“We lack jurisdiction under
§ 2254 to grant a COA on [Fleming’s] argument that the district court should have
appointed counsel for him,” because “there is no constitutional right to assistance of
counsel in pursuit of habeas relief.”).
4
Indeed, we note that Fleming made the decision himself to replace Joseph Wells,
a competent OFPD lawyer whose performance in this case was commendable, with
Faulk. More importantly, even if Faulk had performed adequately, Faulk would have
been allowed to withdraw as Fleming’s counsel after filing a satisfactory IFP motion in
the district court on Fleming’s behalf. See Order, Sept. 15, 2010; 10th Cir. R. 46.4. To
that end, we reiterate that Fleming’s appeal has been reinstated and Fleming filed his own
motion for IFP before the district court.
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b. Fleming’s renewed request for appointment of counsel
Liberally construing Fleming’s briefs as we must, we also understand him to
request that we appoint counsel for him now because, inter alia, his former counsel, Paul
Faulk, never satisfied this Court’s criteria for withdrawal, see Tenth Cir. R. 46.4(A)(5),
and because Faulk mishandled Fleming’s appeal.5
By way of background, after Faulk filed Fleming’s appeal with this Court, Faulk
attempted to withdraw as counsel, citing Fleming’s inability to pay for Faulk’s continued
services. This Court denied Faulk’s motion seeking leave to withdraw, and it notified
Faulk of his responsibility to represent Fleming until Faulk cured certain deficiencies in
Fleming’s appeal. See 10th Cir. R. 3.4, 10.1, 46.1(A), 46.3(A), 46.4(A)(5)(a), (b) & (d).
Faulk failed to cure the defects we identified, and, after issuing an additional warning, we
ordered him to show cause why he should not be referred to a disciplinary panel for
sanctions.
Nearly a month later, Faulk submitted a three-sentence response to the show-cause
order, “apoligiz[ing] to the court for his mistakes and inability to fulfill the
requirements,” and pledging his “commit[ment] to becoming more diligent in meeting
5
This Court already has denied summarily Fleming’s request for counsel in
connection with his original appeal, Case No. 10-6173. However, in provisionally
denying Fleming’s request for counsel in connection with his reinstated appeal, Case No.
12-6248, we noted that we would “consider the possibility of appointing counsel for the
appellant [when] the case has been fully briefed and the court . . . ha[s] an opportunity to
consider the appellant’s own statement of his arguments on appeal.” We now address his
request.
7
obligations.” Response to Show Cause Order, Oct. 4, 2010. But almost immediately,
Faulk earned another rebuke from this Court when he filed a defective motion seeking
leave for Fleming to proceed IFP. Instead of attempting to rectify the problem, Faulk
allowed Fleming’s appeal to be dismissed for lack of prosecution.
Then, in June 2012, pursuant to Fleming’s pro se motion, we reinstated Fleming’s
appeal. We also issued a new show-cause order to Faulk, reminding him that “[t]his
appeal was originally dismissed because . . . Faulk [] violated this court’s rules and failed
to comply with the court’s numerous orders regarding the perfection of this appeal.”
Order, June 15, 2012. Perhaps finally realizing the seriousness of his disciplinary
predicament, Faulk filed a response containing a full-throated apology and an explanation
of his unacceptable performance. We discharged the June 2012 show-cause order, but
we stressed that Faulk’s “conduct in this appeal was unacceptable,” and further cautioned
that “future violations may result in [Faulk’s] immediate referral to the court’s attorney
discipline program.” Order, July 9, 2012
In sum, following the district court’s dismissal of Fleming’s habeas petition,
Faulk’s representation of Fleming was unacceptable. However, while we sympathize
with Fleming on that account, Faulk’s poor performance does not warrant appointment of
new counsel. As we already stated, Fleming’s case is not complex. See Holloway, 250
F. App’x at 901. And, as will be apparent from the discussion below, the claims Fleming
advances to this Court are not meritorious. We also reject Fleming’s argument that
counsel’s failure to comply with the withdrawal provisions of the Tenth Circuit’s Rules
8
of Procedure creates a right to counsel where none otherwise exists. The Tenth Circuit’s
rules govern the duties of counsel during the process of withdrawal and appeal
prosecution, not the rights of the represented litigant. See 10th Cir. R. 46; cf. also
Coleman, 501 U.S. at 752.
Accordingly, while Faulk’s failure to comply with the Court’s procedural rules for
withdrawal put Faulk at risk for disciplinary action (and possibly a suit for malpractice),
his shortcomings do not entitle Fleming to appointed counsel. We therefore DENY
Fleming’s request for counsel. 6
C. Fleming’s remaining claims
Fleming advances two additional claims: (1) that the district court erred in failing
to address some of Fleming’s Brady claims; and (2) that the district court erred when it
refused to provide Fleming with an in-person evidentiary hearing on the issue of whether
the prosecution knowingly elicited perjured testimony from a witness at Fleming’s trial.
As to both of these claims, Fleming has not shown that reasonable jurists could debate
6
We pause to note that, in Faulk’s final Response to Order for Counsel to Show
Cause, Faulk stated that “[he] stands ready, willing, and able to assist Mr. Fleming, pro
bono, with the completion of his reinstated appeal.” The record does not indicate
whether Fleming was ever made aware of Faulk’s offer. In any event, we reiterate that
Fleming has no right to counsel at this stage of the proceedings, see Coleman, 501 U.S. at
752, and he has already had the benefit of counsel to brief the only potentially
meritorious constitutional claims he has advanced throughout this litigation. To that end,
we have carefully reviewed the briefing Fleming’s counsel submitted to the lower court
in connection with his claims.
9
whether the issues he presents are “adequate to deserve encouragement to proceed
further.” See Yang, 525 F.3d at 928.
1. The district court adequately addressed each of Fleming’s Brady claims
Fleming claims that the district court erred when it limited its consideration of his
Brady claims to those involving the prosecutor’s alleged knowing use of perjured
testimony about “crime incident events.” Aplt. Br. at 20-23. Specifically, Fleming
claims that he also intended to “incorporate[]” some of his “Ground One” ineffective
assistance of counsel claims “into his Ground Four [Brady] claim.” Id. at 22-23. Indeed,
Fleming is correct to note that several of the arguments that appear in his habeas petition
under his “Ground One” claim could be liberally construed as freestanding Brady claims.
In fact, the district court did address each of Fleming’s “Ground One” Brady
claims. See Doc. 156, at 6-16 (disposing of Fleming’s Brady claims related to the
prosecutor’s alleged failure to disclose (1) promises to dismiss pending felony charges
against a witness in exchange for testimony; (2) suspension of a sentence on a felony
charge for that witness; (3) provision of counsel to that witness; and (4) the gift of a car to
that witness).7
After carefully reviewing the district court’s orders dismissing each of Fleming’s
Brady claims, for substantially the reasons expressed by the district court, we agree that
7
Perhaps Fleming’s confusion on this point stems from the district court’s
disposal of Fleming’s “Ground One” Brady claims in an order issued prior to the one
disposing of Fleming’s Brady claim involving the prosecutor’s alleged knowing use of
perjured testimony about “crime incident events.” Compare Doc. 156 with Doc. 173.
10
Fleming’s claims lack merit. Accordingly, Fleming has not “made a substantial showing
of the denial of a constitutional right,” see 28 U.S.C.A. § 2253(c)(2), in connection with
his Brady arguments.
2. Fleming was not entitled to an in-person evidentiary hearing
Fleming contends that the district court abused its discretion because it did not
hold an in-person evidentiary hearing to resolve the matter of whether the prosecution
knowingly solicited perjured testimony from a witness at trial. But Fleming’s retained
counsel, Paul Faulk, requested on Fleming’s behalf that this second evidentiary hearing
be held by submission of affidavits in lieu of live testimony. See Doc. 193 (“The parties
advise the Court they are in agreement that the hearing should be conducted in this
manner.”); see also 28 U.S.C.A. § 2246 (“On application for a writ of habeas corpus,
evidence may be taken orally or by deposition, or, in the discretion of the judge, by
affidavit” (emphasis added)). Accordingly, we reject this argument.8
8
Although we do not read Fleming’s habeas petition to re-raise them here, to the
extent that Fleming also reasserts his claims involving (1) the prosecutor’s alleged
knowing use of perjured testimony and (2) ineffective assistance of counsel for failure to
raise an objection on this ground, we reject those arguments for substantially the reasons
articulated by the district court.
11
CONCLUSION
For the foregoing reasons, we GRANT Fleming’s motion to proceed IFP, but we
DENY his request for a COA and appointment of counsel and DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
12