United States v. Kalu

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1006
(D.C. Nos. 1:15-CV-01727-MSK and
KIZZY KALU, 1:12-CR-00106-MSK-1)
(D. Colo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Kizzy Kalu, a federal prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to challenge the denial of his 28 U.S.C. § 2255 motion. We
deny a COA and dismiss the appeal.
I
Kalu was convicted by a jury on 89 counts of mail fraud, encouraging and
inducing an alien, visa fraud, forced labor, trafficking in forced labor, and money
laundering. He was sentenced to 130 months’ imprisonment on some counts and 120
months on others, with the sentences running concurrently. We affirmed his
*
This order is not binding precedent, except under the doctrines of law of the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.
conviction and sentence on direct appeal. United States v. Kalu, 791 F.3d 1194 (10th
Cir. 2015).
Kalu subsequently filed a § 2255 motion in the district court asserting one
claim for ineffective assistance of counsel during plea negotiations. He alleges that
counsel failed to pursue a proposed plea bargain and pressured him to go to trial by
falsely indicating that the district court would not accept the proposed sentence, he
would likely be acquitted at trial, and he would receive a more favorable sentence
even if convicted. Kalu attached to his motion an email sent from defense counsel,
Peter Menges, after the jury’s verdict but before sentencing. In the email, Menges
recounted his recollection of pretrial plea negotiations with the government. He
stated that the government had discussed the possibility of a 30-37 month sentence,
but never extended a firm offer. The email indicates that negotiations did not
progress because Kalu would only accept an offer close to credit for time served,
which the government rejected. Menges further wrote that “[w]e never got past the
negotiation stage because you were never interested in any offer even close to what
the government was proposing.” Kalu also attached a portion of the sentencing
hearing transcript, in which he stated that “after discussing [a possible plea
agreement] with my attorneys, because there was nothing written about this, I
decided I knew I felt that I should go to trial.”
Menges and co-counsel, Michael Sheehan, filed affidavits regarding the
assertions in Kalu’s § 2255 motion. Both affirmed that the government never
extended a formal plea offer and that Kalu was not interested in negotiating a plea.
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Further, both attorneys averred that they never pressured Kalu to reject a plea or
made the representations identified in Kalu’s § 2255 motion. Menges also attached
his notes from the meeting in which he discussed the possibility of a plea with Kalu.
After receiving counsels’ affidavits, the district court determined that an
evidentiary hearing was not warranted. It denied relief on the merits and declined to
grant a COA. Kalu now seeks a COA from this court.
II
A prisoner may not appeal the denial of relief under § 2255 without a COA.
§ 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard,
Kalu must 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.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
To succeed on an ineffective assistance claim, a prisoner must establish “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). The right to counsel extends to the plea-bargaining process. Missouri v.
Frye, 566 U.S. 134, 140 (2012). Kalu argues that counsel was ineffective for failing
to pursue a formal offer after the government discussed the possibility of a 30-37
month sentence. However, a defendant has no right to be offered a formal plea. Id.
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at 148. And both defense attorneys affirmed that Kalu was uninterested in the 30-37
month proposal when it was presented to him. Counsel’s averments are supported by
the email from Menges to Kalu, and Kalu’s statements at sentencing.
Kalu also argues that defense counsel made false statements as to Kalu’s
prospects of acquittal and likely sentence at trial to improperly encourage Kalu to
reject the potential offer. This assertion is contravened by counsels’ affidavits.
Further, Kalu’s own statements at the sentencing hearing undermine his current
argument; he unequivocally stated that he decided to proceed to trial and did not
suggest he was pressured to do so by defense counsel. In any event, an erroneous
prediction as to the likelihood of success does not necessarily constitute ineffective
assistance. See Lafler v. Cooper, 566 U.S. 156, 174 (2012). Kalu’s bare assertion
that counsel’s advice proved incorrect does not establish deficient performance.
Finally, Kalu challenges the district court’s decision to deny his motion
without an evidentiary hearing. We conclude the district court did not abuse its
discretion because “the files and records of the case conclusively show” that Kalu is
not entitled to relief. § 2255(b); see also United States v. Clingman, 288 F.3d 1183,
1187 n.4 (10th Cir. 2002) (denial of evidentiary hearing reviewed for abuse of
discretion); Hopkinson v. Shillinger, 866 F.2d 1185, 1211 (10th Cir. 1989)
(“Conclusory allegations unsupported by specifics are insufficient to require a court
to grant an evidentiary hearing, as are contentions that in the face of the record are
wholly incredible.” (quotation and ellipses omitted)), overruled on other grounds as
stated in Phillips v. Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).
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III
For the foregoing reasons we DENY a COA and DISMISS the appeal. Kalu’s
motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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