U.S. v. DEBERRYNo. 11-1355.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
FREDERICK D. DEBERRY, Defendant-Appellant.
FREDERICK D. DEBERRY, Defendant-Appellant.
United States Court of Appeals, Tenth Circuit.
December 12, 2011.
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
JEROME A. HOLMES, Circuit Judge.
Frederick Deberry, a federal prisoner proceeding pro se,
The relevant facts are set forth in the district court's order denying Mr. Deberry's § 2255 motion; in our decision in United States v. Deberry, 364 F. App'x 404 (10th Cir. 2010), arising from Mr. Deberry's direct appeal in this case; and our decision in United States v. Deberry,
Following an investigation, Messrs. Deberry, Lackey, and Talifero were charged in a four-count superseding indictment in October 2003. However, the Native American inmates involved in the later attack were not immediately charged. Mr. Deberry and his codefendants then brought a claim of selective prosecution. The district court ordered discovery, but the government refused to comply. The court then dismissed the indictment against the three defendants, allowing the government to appeal the discovery order. In the meantime, in July 2005, the Native American inmates involved in the later attack were indicted.
In December 2005, this court reversed the district court's dismissal of the indictment against Messrs. Deberry, Lackey, and Talifero. Deberry, 430 F.3d at 1302. We held that the defendants had not carried their burden under United States v. Armstrong,
After remand, Mr. Deberry entered into a plea bargain with the government, agreeing to plead guilty to one count of possession of a dangerous weapon in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), in exchange for dismissal of all other charges against him. Although Mr. Deberry's guilty plea pertained to possession only, the plea agreement contained a description of the alleged assault, and Mr. Deberry objected to some of its language. By handwritten note attached to the agreement and initialed by the parties, Mr. Deberry reserved the right to contest language indicating that he did anything other than possess the prohibited weapon. He also reserved the right to contest the extent of any injuries sustained by the victim, Mr. Wheelock. At the change of plea hearing, the parties clarified that Mr. Deberry was admitting to possession of the weapon but specifically disavowing any use of the weapon in connection with Mr. Wheelock's injuries.
A pre-sentence report ("PSR") was prepared that calculated Mr. Deberry's offense level at eleven with a criminal history category of IV, resulting in an advisory Guidelines range of eighteen to twenty-four months in prison. However, the PSR recommended an upward departure to a sentence of sixty months (the statutory maximum for possession) based on the alleged assault and the extent of the resulting injuries. Mr. Deberry objected to the recommended sentence and disputed the facts contained in the PSR. In response, the court scheduled an evidentiary hearing.
During the hearing, the court heard testimony from four witnesses and admitted several exhibits, including the video recording of the altercation and the shank allegedly used against Mr. Wheelock. After considering the evidence and the parties' arguments, the court found by a preponderance of the evidence that Mr. Wheelock suffered a life-threatening injury and that Mr. Deberry intentionally inflicted that injury. Based on these findings, the court determined that an upward departure was warranted and, after considering the Guidelines and the other 18 U.S.C. § 3553(a) factors, imposed a sentence of fifty-four months.
On direct appeal, Mr. Deberry argued that the upward departure based on the district court's findings of fact denied him his Sixth Amendment right to trial by jury. We rejected this argument based on the well-established principle that (as long as the Guidelines are applied in advisory fashion) a defendant has no constitutional right to a jury determination of the facts supporting a sentencing enhancement if that enhancement falls within the statutory range for the offense. See Deberry, 364 F. App'x at 406. We thus affirmed Mr. Deberry's conviction and sentence, and the Supreme Court denied certiorari on June 1, 2010, see
On April 21, 2011, Mr. Deberry filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting four claims: (1) vindictive and/or discriminatory prosecution, (2) judicial bias, (3) abuse of discretion by the sentencing court, and (4) ineffective assistance of counsel. On June 13, 2011, Mr. Deberry filed a motion to amend and add a fifth claim. The district court granted Mr. Deberry's motion to amend. In his fifth claim, Mr. Deberry asserted that the length of his sentence was unreasonable. The district court subsequently denied the § 2255 motion, as amended, and entered judgment on July 22, 2011. Mr. Deberry filed a notice of appeal on July 27, 2011. The district court then denied both his request for a COA and leave to proceed in forma pauperis on appeal. Mr. Deberry now seeks a COA from this court, reasserting his five claims for relief.
STANDARD OF REVIEW
A COA is a jurisdictional prerequisite to our review of the merits of a habeas appeal. See 28 U.S.C. § 2253(c)(1)(B); accord United States v. Tony,
Four of the five claims that Mr. Deberry puts forth in his COA application arise out of the fifty-four-month sentence that was imposed by the district court and affirmed on direct appeal in Deberry, 364 F. App'x 404. In claim one (claim two in his original § 2255 motion before the district court), Mr. Deberry alleges judicial bias based on the stated findings of the district court at the sentencing hearing. In claim three (claim one in his original § 2255 motion), he alleges that he has been subject to vindictive prosecution and racial discrimination because the Native American inmates involved in the retaliatory attack received more lenient sentences than he and because the government sought the maximum sentence against him out of retaliation for his previous assertions of discriminatory prosecution. Claims two and four (originally claims three and five) are, in substance, challenges to the reasonableness of his sentence. Mr. Deberry asserts that the district court abused its discretion during the sentencing phase by failing to consider U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 5K2.10, applicable when a victim's conduct is wrongful and provocative; and that the length of his sentence is unreasonable in light of both Mr. Wheelock's provocations and the disparity in sentencing vis-à-vis his codefendants and the Native American inmates. In his fifth (originally fourth) claim, Mr. Deberry argues that his counsel was constitutionally deficient for failing to "raise as grounds the issues and claims now raised herein for appeal review." Aplt. Combined Opening Br. & Appl. for COA at 15.
None of the first four claims was raised by Mr. Deberry on direct appeal, and it is well-established that § 2255 is ordinarily "not available to test the legality of matters which should have been raised on appeal." United States v. Challoner,
A claim of ineffective assistance of counsel satisfies the cause requirement, see id.; accord United States v. Cook,
"Although Strickland set forth standards for determining the effectiveness of trial counsel, we have applied those same standards in assessing the effectiveness of appellate counsel." Cook, 45 F.3d at 392. When the basis of an ineffective-assistance claim is the failure by appellate counsel to raise an issue on appeal, "we must look to the merits of the omitted issue." United States v. Orange,
The district court analyzed and rejected each of Mr. Deberry's first four claims on the merits. It separately analyzed and rejected Mr. Deberry's final claim for ineffective assistance of counsel, ultimately dismissing his § 2255 motion. We, too, will examine the merits of Mr. Deberry's first four claims, but we do so to determine only whether his appellate counsel was ineffective for failing to raise the issues on direct appeal. If we find that the omitted issues are without merit, counsel's failure to raise them does not constitute constitutionally ineffective assistance of counsel. See Cook, 45 F.3d at 392. For the reasons discussed below, we agree with the district court that the first four claims lack merit, and, as a consequence, Mr. Deberry cannot succeed on his fifth claim that appellate counsel was ineffective. Further, because we find that counsel was not ineffective, Mr. Deberry has failed to show cause for procedurally defaulting the first four claims. See Challoner, 583 F.3d at 750. In sum, we conclude that Mr. Deberry's first four claims are procedurally barred and that his fifth, ineffective-assistance claim also must be rejected. Accordingly, we find that reasonable jurists could not debate the district court's conclusion that Mr. Deberry is not entitled to § 2255 relief.
I. Claim One: Judicial Bias
Mr. Deberry asserts a claim of judicial bias arising out of the district court's findings of fact at the sentencing hearing. "To demonstrate a violation of due process because of judicial bias, a claimant must show either actual bias or an appearance of bias." Bixler v. Foster,
At the sentencing hearing, the district court, having reviewed a videorecording of Mr. Deberry's attack on Mr. Wheelock, stated that Mr. Deberry "returned [downstairs] and felt that he . . . was subject to disrespect by Wheelock and then went again back upstairs and returned with the weapon and the . . . two other codefendants in this case, Talifero and Lackey." R. at 18 (Rep.'s Tr. Excerpt Sentencing Hr'g, filed Dec. 9, 2008). Mr. Deberry avers that there is no evidence to support the finding that he retrieved the shank or sought the help of his codefendants in response to an initial provocation by Mr. Wheelock, that the district court ignored eyewitness testimony tending to establish that Mr. Deberry acted in self-defense, and that the court's comments "erroneously insinuat[ed] that the Appellant premeditated the attack on Wheelock." Aplt. Combined Opening Br. & Appl. for COA at 5; accord R. at 56, 61-62. Mr. Deberry further contends that these findings were "rendered . . . obviously to aid the government in its argument that the court impose a much harsher sentence," Aplt. Combined Opening Br. & Appl. for COA at 5, and that they "reveal[ed] an extremely high degree of favoritism on behalf of the government," id. at 6.
Mr. Deberry's claim of judicial bias rests on nothing more than the district court's adverse ruling and allegedly erroneous commentary on the matter before it. Standing alone, this does not suffice. "[W]hen a judge's words or actions are motivated by events originating within the context of judicial proceedings, they are insulated from charges of bias." Nickl, 427 F.3d at 1298. Also, "[a]dverse rulings alone are insufficient grounds for disqualification, as is evidence that the judge criticized or was angry with a party." In re Am. Ready Mix, Inc.,
Mr. Deberry has not shown "such a high degree of favoritism or antagonism as to make fair judgment impossible." Gambino-Zavala, 539 F.3d at 1228 (quoting Nickl, 427 F.3d at 1298) (internal quotation marks omitted). Accordingly, his judicial-bias claim is without merit. Because the claim is without merit, Mr. Deberry's counsel was not ineffective for failing to raise it on direct appeal, see Cook, 45 F.3d at 392-93, and as a result, Mr. Deberry has not shown cause for procedurally defaulting the claim, see Challoner, 583 F.3d at 750. Therefore, no reasonable jurist could debate the district court's conclusion that Mr. Deberry is not entitled to § 2255 relief on this ground.
II. Claim Three: Vindictive Prosecution
Mr. Deberry argues that he has been subject to vindictive prosecution and racial discrimination because the Native Americans involved in the retaliatory attack received more lenient sentences than he, even though the "circumstances and events" of that retaliatory attack "were extremely more severe, and far harsher than those involved in the instant case." Aplt. Combined Opening Br. & Appl. for COA at 10. He asserts, more specifically, that "[while] the three Native-American defendants plotted[,] planned[,] and successfully committed a violent assault against an innocent inmate . . . [,] the Appellant and two co-defendants in fact acted in response to the aggressive provocations of Wheelock." Id. Mr. Deberry also alleges that the government sought the maximum sentence against him out of retaliation for his previous assertions of discriminatory prosecution.
The government argued before the district court that Mr. Deberry is precluded from asserting his selective prosecution claim in a § 2255 motion because the claim was previously resolved on direct criminal appeal. See, e.g., United States v. Cox,
First, while Mr. Deberry contests the district court's findings that he retrieved a shank and sought his codefendants' help after feeling "disrespect[ed]" by Mr. Wheelock, see Aplt. Combined Opening Br. & Appl. for COA at 5, he does not dispute what the video evidence shows: that there was an initial confrontation between him and Mr. Wheelock, that he left the scene and returned a short time later with his codefendants, and that he and his codefendants subsequently closed in on Mr. Wheelock and attacked him with a shank, causing Mr. Wheelock to suffer severe injuries. See R. at 100. The circumstances of this altercation, then, were not as different from the later retaliatory attack by the Native American inmates as Mr. Deberry suggests. Second, as the district court noted, "any differences regarding the sentences imposed would not demonstrate prosecutorial misconduct because the sentences are imposed by the sentencing judge," id. at 98, and Mr. Deberry "has not shown that the sentencing factors that informed his sentence were present with the other inmates," id. at 98 n.2. Finally, Mr. Deberry's argument that the government sought the maximum sentence in his case out of retaliation is merely speculative. Equally, if not more likely, the maximum sentence was sought "because of the seriousness of the offense conduct, including the intentional use of a dangerous weapon and the victim's life-threatening injury." Id. at 98.
We therefore conclude that there is no merit to Mr. Deberry's vindictive-prosecution claim. Because the claim is without merit, Mr. Deberry's counsel was not ineffective for failing to raise it on direct appeal, and as a result, Mr. Deberry has not shown cause for procedurally defaulting the claim. See Cook, 45 F.3d at 392-93; Challoner, 583 F.3d at 750. Therefore, no reasonable jurist could debate the district court's conclusion that Mr. Deberry is not entitled to § 2255 relief on this ground.
III. Claims Two and Four: Unreasonable Sentence
In his second and fourth claims, Mr. Deberry challenges the reasonableness of his sentence. He asserts that the district court abused its discretion during the sentencing phase by failing to consider U.S.S.G. § 5K2.10, which is applicable when a victim's conduct is wrongful and provocative; and that the length of his sentence is unreasonable in light of both Mr. Wheelock's alleged provocations and the disparity in sentencing vis-à-vis his codefendants and the Native American inmates.
In reviewing a defendant's sentence for reasonableness, we defer to the district court under the "familiar abuse-of-discretion standard of review." United States v. Martinez,
United States v. Martinez-Barragan,
We construe Mr. Deberry's second claim as pertaining to the procedural reasonableness of his sentence. See United States v. Fonseca,
A. Claim Two: Procedural Reasonableness
Mr. Deberry claims that his sentence is procedurally unreasonable because the district court failed to apply a departure based on U.S.S.G. § 5K2.10, under which a court "may reduce [a] sentence below the guideline range" when "the victim's wrongful conduct contributed significantly to provoking the offense behavior." Mr. Deberry claims that Mr. Wheelock was the "main instigator; aggressor; and one who ultimately provoked the offense behavior." Aplt. Combined Opening Br. & Appl. for COA at 7.
Had Mr. Wheelock's counsel sought to raise this claim on direct appeal, we would have lacked jurisdiction to consider it. As we have explained before, "this court has no jurisdiction to review a district court's discretionary decision to deny a motion for downward departure on the ground that a defendant's circumstances do not warrant the departure." Fonseca, 473 F.3d at 1112 (alterations omitted) (quoting United States v. Sierra-Castillo,
Mr. Deberry's procedural-reasonableness claim lacks merit because, had it been raised on direct appeal, this court would not have had jurisdiction to consider it. Appellate counsel does not render deficient performance by failing to raise on appeal a claim over which the court lacks jurisdiction. Mr. Deberry has thus failed to show cause for procedurally defaulting this claim, see Challoner, 583 F.3d at 750, and no reasonable jurist could debate the district court's conclusion that Mr. Deberry is not entitled to § 2255 relief on this ground.
B. Claim Four: Substantive Reasonableness
The recommended Guidelines range for Mr. Deberry's offense—possession of a weapon while in prison under 18 U.S.C. §§ 1791(a)(2), (b)(3)—was eighteen to twenty-four months. However, the PSR recommended an upward departure pursuant to U.S.S.G. § 5K2.2 based on evidence that Mr. Wheelock suffered a life-threatening injury and that Mr. Deberry intentionally inflicted that injury. At sentencing, the district court agreed that an upward departure was appropriate, stating:
R. at 23-24. The court settled on an offense level of twenty based on an "analogy to assault [resulting] in serious bodily injury." Id. at 20. Combined with Mr. Deberry's criminal history category of IV, the recommended Guidelines sentence would be fifty-one to sixty-three months. The district court, considering all of the § 3553(a) factors, concluded that a sentence of fifty-four months was "sufficient but not greater than necessary" for the offense. R. at 24.
Mr. Deberry challenges the substantive reasonableness of his sentence on essentially two grounds: Mr. Wheelock's "wrongful provocations" and the disparity between Mr. Deberry's sentence on the one hand and the sentences of his codefendants and the Native American inmates on the other.
When we review a defendant's sentence for substantive reasonableness, we employ an abuse-of-discretion standard. Martinez, 610 F.3d at 1227. We must determine "whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a)." Id. (quoting United States v. Friedman,
"We, like the district court, are guided by the § 3553(a) factors when determining reasonableness." Martinez-Barragan, 545 F.3d at 905. These factors include "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1); the need for the sentence "to reflect the seriousness of the offense" and "to protect the public from further crimes of the defendant," id. § 3553(a)(2); and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," id. § 3553(a)(6).
Mr. Deberry's claim of substantive unreasonableness based on the alleged provocations by Mr. Wheelock must fail. While Mr. Wheelock may have thrown the first punch, the district court found that this act was itself precipitated by Mr. Wheelock's being surrounded by Mr. Deberry and the codefendants. Moreover, the court found that Mr. Deberry's fivefold stabbing of Mr. Wheelock was disproportionate to any threat posed by Mr. Wheelock, particularly because Mr. Deberry was aided by two confederates. Mr. Deberry does not dispute these factual findings, nor does he dispute the severity of Mr. Wheelock's injuries or the intentional nature of his conduct. In light of the "nature and circumstances" and "seriousness" of the offense, among other factors, 18 U.S.C. §§ 3553(a)(1), (2), the district court did not abuse its discretion in imposing a fifty-four-month sentence on Mr. Deberry.
Likewise, Mr. Deberry cannot prevail based upon alleged sentencing disparities. His claim suffers in two respects, one general and one specific. In general, "§ 3553(a)(6) does not require the sentencing court to compare the sentences of codefendants; rather, it looks to uniformity on a national scale." United States v. Ivory,
Because Mr. Deberry's claim that his sentence is substantively unreasonable is without merit, his counsel was not ineffective for failing to raise this claim on direct appeal. Cook, 45 F.3d at 392-93. As a result, Mr. Deberry has not shown cause for procedurally defaulting this claim. See Challoner, 583 F.3d at 750. Therefore, no reasonable jurist could debate the district court's conclusion that Mr. Deberry is not entitled to § 2255 relief on this ground.
Because none of his first four claims has merit, Mr. Deberry cannot show that his counsel was constitutionally ineffective for failing to raise these claims on direct appeal. See Cook, 45 F.3d at 392-93. Accordingly, Mr. Deberry has not shown cause adequate to resurrect these procedurally defaulted claims. See Challoner, 583 F.3d at 750. For the same reason, the fifth claim in Mr. Deberry's application for a COA—constitutionally deficient counsel—must be rejected. We conclude, therefore, that reasonable jurists could not debate the district court's conclusion that Mr. Deberry is not entitled to § 2255 relief.
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