United States v. Bailey

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 26 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-1147
DARRELL LAMONT BAILEY, (D.C. No. 96-N-2657)
(D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Darrell Lamont Bailey, a federal prisoner appearing pro se, seeks a certificate of
appealability to appeal the denial of his 28 U.S.C. § 2255 habeas petition. We deny a
*
This order and judgment is not binding precedent, except under the doctrines of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.
certificate of appealability and dismiss the appeal.
Bailey was convicted of two counts of assaulting a federal prison employee, in
violation of 18 U.S.C. § 111(a). This court affirmed his conviction on direct appeal,
but remanded for resentencing. See United States v. Bailey, 76 F.3d 320 (10th Cir.
1996). Bailey filed his habeas petition on November 15, 1996, alleging: (1) bias and
prejudice of the district judge assigned to the case; (2) “limited self-representation
defeats effective representation;” (3) “selective prosecution as affirmative defense
denied pro se movant”; (4) Comprehensive Crime Control Act was unlawfully passed;
(5) zip codes used for selection of potential jurors is unconstitutional; and (6)
ineffective assistance of counsel. The petition was denied on February 2, 2001. The
court found there was no reason for the judge's disqualification, and there was “no
improper interference with [Bailey's] right to self-representation. The court found that
the remaining four grounds for relief were either raised on direct appeal or could have
been raised on direct appeal and were without merit. Bailey has waived some of his
issues by not raising them on appeal.
Ineffective assistance of counsel
Bailey argues that he received ineffective assistance of counsel because counsel
was forced upon him against his will. At the trial stage, a defendant has a right to
defend himself, but the trial court can appoint an attorney to advise the defendant and
be available if the need arises. See Faretta v. California, 422 U.S. 806, 834 n.46
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(1975). That is what occurred here. The district court appointed an assistant federal
public defender as advisory counsel. On the eve of trial, Bailey requested that the
advisory counsel be appointed to represent him. Contrary to Bailey's argument, there
is no right to self-representation on direct appeal. See Martinez v. Court of Appeal of
California, 528 U.S. 152, 155 (2000). The district court conducted a hearing to address
Bailey's claim that he was forced to accept appointed counsel because he was
improperly denied library access. The court found he had adequate access to legal
materials and that any delay in access was justified by security concerns.
Jury wheel consolidation
Bailey argues that the district court erred in denying his motion to join with
other defendants in an objection to the jury wheel. Bailey fully litigated his claims
regarding the jury wheel at trial and on direct appeal. He does not allege how he was
harmed by the denial of his motion.
Apprendi
Bailey asks us to remand to the district court for consideration of whether the
rule set out in Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to his case, but he
makes no arguments as to why it would apply. Apprendi is only relevant where a
defendant has been sentenced beyond the statutory maximum term. See United States
v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000). Bailey has not alleged he was
sentenced beyond the applicable statutory term for violation of 18 U.S.C. § 111(a).
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Since the Apprendi argument is insufficiently developed, we will not consider it. See
Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
The application for a certificate of appealability is DENIED and the appeal is
DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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