United States v. Handy

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 11, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3121
(D.C. Nos. 2:16-CV-02724-CM &
VERDALE HANDY, 2:09-CR-20046-CM-8)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, O’BRIEN, and MORITZ, Circuit Judges.
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Verdale Handy, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s order construing his Fed. R. Civ. P. 15
motion to amend his original 28 U.S.C. § 2255 habeas motion as an unauthorized second
or successive § 2255 petition and dismissing it for lack of jurisdiction. We deny a COA
and dismiss this matter.
Background
In 2010, Handy was convicted of multiple drug trafficking offenses, attempted
murder, and possession and use of a firearm during a crime of violence. He was
*
This order is not binding precedent except under the doctrines of law of the case,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.
sentenced to life imprisonment. This court rejected his direct appeal and affirmed his
conviction and sentence.
Handy then filed a § 2255 motion alleging ineffective assistance of appellate
counsel, including the failure to challenge the truthfulness of the government’s witness
testimony at his James hearing.1 The district court denied the motion in June 2015; this
court denied a COA and dismissed the matter.
In December 2015, Handy filed in district court a Fed. R. Civ. P. 60(b) motion.
He claimed that his due process rights were violated when the government failed to
respond to the argument in his original § 2255 brief that a detective testified falsely at his
James hearing. The court denied the motion on the merits, explaining that it had
expressly rejected the false testimony and ineffective assistance of counsel arguments in
its order on Handy’s first § 2255 motion. United States v. Handy, No. 2:09-cr-20046-
CM, slip op. at 2 (D. Kan. Dec. 18, 2015), ECF No. 831, citing United States v. Handy,
No. 2:09-cr-20046-CM, 2015 WL 3966242, at *2, 3 (D. Kan. June 29, 2015). Handy
filed an application for a COA in this court. This court concluded that the Rule 60(b)
motion was not a true Rule 60(b) motion; instead it was a second or successive attempt at
post-conviction relief based on arguments that had been rejected. We proceeded to
consider Handy’s COA application as a motion to file a second or successive motion and
determined that it could not be authorized because 28 U.S.C. § 2244(b)(1) prohibits
1
A James hearing is conducted outside the presence of the jury to make the
factual determinations necessary to admit the statements of a defendant’s co-conspirators
as non-hearsay. United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (citing
United States v. James, 590 F.2d 575 (5th Cir. 1979)).
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consideration of claims argued in a prior application. We vacated the district court’s
order for lack of jurisdiction and denied the motion to file a second or successive habeas
petition.
Most recently, Handy filed a motion in district court to amend his original § 2255
motion under Fed. R. Civ. P. 15 to add a claim that the court failed to rule on his claim of
fabricated testimony at the James hearing and for ineffective assistance of counsel. The
court construed Handy’s motion to amend as an unauthorized successive § 2255 motion,
and dismissed it for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (per curiam) (“A district court does not have jurisdiction to address the merits of a
second or successive § 2255 . . . claim until this court has granted the required
authorization.”); see also 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive
[§ 2255 motion] . . . is filed in the district court, the [movant] shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
[motion].”). Handy now seeks to appeal.
Analysis
To appeal, Handy must obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). Where, as
here, a district court has dismissed a filing on procedural grounds, for a COA the
applicant must show both “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). We bypass the constitutional question
because we can easily dispose of this matter based on the procedural one. See id. at 485.
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“It is the relief sought, not his pleading’s title, that determines whether the
pleading is a § 2255 motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir.
2006). If the pleading “seeks relief from the conviction or sentence,” it should be treated
as a successive § 2255 application. Id. at 1147. “On the other hand, if the pleading only
attacks, not the substance of the federal court’s resolution of a claim on the merits, but
some defect in the integrity of the federal habeas proceedings, then it is not advancing a
new claim and should not be characterized as a successive petition.” Id. (internal
quotation marks omitted).
According to Handy, his pleading attacks a defect in the integrity of his federal
habeas proceedings and, therefore, is not a successive petition. We do not reach the issue
because the claims Handy wants to pursue were presented in a prior application and must
be dismissed. See § 2244(b)(1). There is no debate that the district court’s procedural
ruling was correct.
A COA is denied and this matter is dismissed.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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