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U.S. v. DEBERRY
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
FREDERICK D. DEBERRY, Defendant-Appellant.
No. 11-1355.
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,1 seeks a certificate of appealability ("COA") to challenge the district court's denial of his motion for relief under 28 U.S.C. § 2255. Mr. Deberry has also filed a motion to proceed in forma pauperis on appeal. We deny Mr. Deberry's application for a COA and dismiss his appeal. We also deny his motion to proceed in forma pauperis. BACKGROUNDThe 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, 430 F.3d 1294 (10th Cir. 2005), adjudicating the government's direct appeal. In brief, while imprisoned at the U.S. Penitentiary in Florence, Colorado, Mr. Deberry and two fellow inmates, Rodgerick Lackey and Paul Talifero, collaborated in an assault on another inmate, Wayne Wheelock. In the course of the attack, Mr. Deberry allegedly stabbed Mr. Wheelock five times in the back with an ice-pick-style weapon (colloquially known as a "shank"). Mr. Deberry and his erstwhile collaborators are African American. The victim, Mr. Wheelock, is Native American. Three days after the altercation, three Native American inmates attacked and allegedly stabbed an African American inmate, Arnold Haskins, in retaliation for Mr. Deberry's assault on Mr. Wheelock. 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, 517 U.S. 456 (1996), of showing both discriminatory effect and discriminatory intent in order to warrant discovery on a selective-prosecution claim. Deberry, 430 F.3d at 1300-01. In particular, we concluded that the defendants and the Native American inmates were not similarly situated in one significant respect: A video camera captured the defendants' attack on Mr. Wheelock, while the Native American inmates' attack on Mr. Haskins occurred inside a cell, out of camera range, thus necessitating the use of less reliable evidence (eyewitness testimony) and more preparation for trial. Id. at 1301.
* 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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
1. Because Mr. Deberry is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
2. In his application for a COA, Mr. Deberry asserts what he styles a "[s]ixth [i]ssue," namely, that "[t]he district court committed clear error and abused its discretion when denying Appellant's section 2255 motion." Aplt. Combined Opening Br. & Appl. for COA at 16. Mr. Deberry's arguments under this heading reprise his arguments under the other five claims. We therefore construe this sixth claim as subsumed within the other five.
3. The government argued to the district court that Mr. Deberry's fourth claim—unreasonable length of sentence, which was originally his fifth claim, added after his motion to amend—was not encompassed within his claim of ineffective assistance of counsel. R. at 88 (United States' Answer Def.'s Mot. Under 28 U.S.C. § 2255, filed June 21, 2011). The district court agreed but examined the merits anyway. Id. at 103 (Order Mot. Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed July 21, 2011). In his original § 2255 motion asserting four claims, Mr. Deberry claimed ineffective assistance by virtue of his counsel's failure to raise the other three claims, which he enumerated specifically: "Prosecutorial Misconduct," "Judicial Bias," and "Plain Error" (i.e., abuse of discretion by the sentencing court in failing to consider U.S.S.G. § 5K2.10). See R. at 32, 39-40 (Mot. Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed Apr. 21, 2011). When he amended his motion, Mr. Deberry appears to have photocopied the original motion and added to the last page (spilling over onto an additional page) a "claim five" for unreasonable length of sentence. See id. at 65-66 (Amended Mot. Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed June 13, 2011). Because Mr. Deberry photocopied the original motion, he did not alter his ineffective-assistance claim to specifically reference the newly added fifth claim. Nonetheless, there are two reasons to construe the ineffective-assistance claim as encompassing the new unreasonable-length-of-sentence claim.
First, Mr. Deberry appears to have intended the ineffective-assistance claim to encompass all other claims in his § 2255 motion. He states that "had his appeal counse[l] raised as grounds on appeal the claims now raised herein, as the defendant strenuously requested he do, then surely he would have received a favorable decision on appeal." Id. at 64-65. Against the background of liberally construing a pro se litigant's filings, see Van Deelen, 497 F.3d at 1153 n.1, the best interpretation of this language, in light of the amendment to the § 2255 motion, is that Mr. Deberry later recalled an additional claim—the subsequently appended fifth claim—which he also had asked his counsel to raise.
Second, as discussed infra, the unreasonable-length-of-sentence claim is closely related to Mr. Deberry's second (originally third) claim contending that the sentencing court abused its discretion by failing to consider U.S.S.G. § 5K2.10. The gist of both of these claims is that Mr. Deberry's fifty-four-month sentence is unreasonable. The unreasonable-length claim sounds in substantive unreasonableness, and the failure-to-consider claim sounds in procedural unreasonableness. See United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (explaining substantive and procedural unreasonableness in reviewing a district court's sentencing decision).
Accordingly, we construe Mr. Deberry's ineffective-assistance claim as encompassing all claims, including the unreasonable-length-of-sentence claim, in his COA application.
4. This argument, though addressed by the district court, is not artfully made in Mr. Deberry's combined opening brief and application for COA. He asserts that "an actual case of vindictive prosecution is prev[a]lent in the instant case because, though the government prosecuted the three [Native American] defendants involved in that other assault, it did so merely to s[u]rvive the selective prosecution argument. Moreover, in the instant case, the government argued vehemently that the district court impose the maximum sentence allowable to the Appellant, but [recommended more lenient sentences for the Native American defendants]." Aplt. Combined Opening Br. & Appl. for COA at 9-10. Because the district court addressed the retaliation argument and because we construe Mr. Deberry's COA application liberally, Van Deelen, 497 F.3d at 1153 n.1, we will not deem the argument waived. Cf. Kokins v. Teleflex, Inc., 621 F.3d 1290, 1301 n.6 (10th Cir. 2010) ("[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief." (alteration in original) (quoting Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007))).
5. The district court addressed the substantive-reasonableness claim based on the sentencing disparity with respect to Mr. Deberry's codefendants only and did not consider the disparity vis-à-vis the Native American inmates. See R. at 103. However, Mr. Deberry's § 2255 motion alleged disparity based on both the sentences of the codefendants and the sentences of the Native American inmates. See id. at 65-66 (alleging a "grave disparity in the sentence [Mr. Deberry] received, as [o]pposed to the sentences that were imposed upon the other two defendants (Roderick Lackey and Paul Talliafero [sic]), . . . as well as a grave disparity in the sentence [Mr. Deberry] received, as [o]pposed to the sentences that were imposed upon the three defendants named in that other assault"). It appears, then, that the district court simply overlooked the claim of disparity vis-à-vis the Native American inmates. Because Mr. Deberry made this claim in both his § 2255 motion and his application for a COA, it is properly before us.
6. Mr. Deberry informs us only that one inmate had the charges against him dismissed, one was allowed to enter a plea to "the lesser included offense" and received a sentence of twenty-four months, and the third entered a plea to "the lesser included [offense]" and received a sentence of twelve months. Aplt. Combined Opening Br. & Appl. for COA at 13.
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