U.S. v. DEBERRY
UNITED STATES OF AMERICA, Plaintiff-Appellee,
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,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.BACKGROUND 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, 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.