United States v. Gabourel ( 2023 )


Menu:
  • Appellate Case: 22-6190     Document: 010110817548         Date Filed: 02/24/2023      Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                            Tenth Circuit
    FOR THE TENTH CIRCUIT                            February 24, 2023
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                            No. 22-6190
    (D.C. Nos. 5:22-CV-00598-D &
    LARENZO GABOUREL,                                         5:15-CR-00172-D-2)
    (W.D. Okla.)
    Defendant - Appellant.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    _________________________________
    Before MATHESON, BRISCOE, and EID, Circuit Judges.
    _________________________________
    Larenzo Gabourel, a federal prisoner proceeding pro se, seeks a certificate of
    appealability (“COA”) to appeal the district court’s denial of his motion to vacate, set
    aside, or correct his sentence under 
    28 U.S.C. § 2255.1
     See 
    28 U.S.C. § 2253
    (c)(1)(B)
    (requiring a COA to appeal an order denying a § 2255 motion). Exercising jurisdiction
    under 
    28 U.S.C. §§ 1291
     and 2253(a), we deny Mr. Gabourel’s request for a COA and
    dismiss this matter.
    *
    This order is not binding precedent except under the doctrines of law of the case,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.
    1
    Because Mr. Gabourel is proceeding pro se, we construe his filings liberally, but
    do not serve as his advocate. See Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007) (per
    curiam); James v. Wadas, 
    724 F.3d 1312
    , 1315 (10th Cir. 2013).
    Appellate Case: 22-6190     Document: 010110817548          Date Filed: 02/24/2023     Page: 2
    I. BACKGROUND
    A. Underlying Criminal Case
    A federal grand jury indicted Mr. Gabourel for (1) conspiracy to possess with
    intent to distribute phencyclidine (“PCP”), (2) possession of PCP with intent to distribute
    (or aiding and abetting the same), and (3) possessing a firearm in furtherance of a drug
    trafficking crime. A jury found him guilty of all charges. The district court sentenced
    him to 180 months in prison. See United States v. Gabourel, 
    692 F. App’x 529
    , 533-34
    (10th Cir. 2017) (unpublished).
    On direct appeal, Mr. Gabourel argued the evidence was insufficient to support his
    convictions. 
    Id. at 531
    . In June 2017, we affirmed, noting that “Mr. Gabourel ha[d]
    failed to show that no rational juror could have convicted him of” the charged offenses
    based on the evidence adduced at trial. 
    Id. at 549
    .
    B. Section 2255 Motion
    In July 2022, Mr. Gabourel moved for relief under § 2255 claiming he had
    obtained new exculpatory evidence: Mr. Alvin Norman’s sworn statement dated January
    17, 2022 “attesting to [Mr. Gabourel’s] alleged innocence of all charges and explaining
    [Mr. Gabourel’s] presence at the apartment where PCP was kept and his association with
    the codefendants selling PCP.” ROA, Vol. IV at 103.2 Mr. Norman was a codefendant
    2
    Although Mr. Gabourel filed his motion well beyond the one-year statute of
    limitation in 
    28 U.S.C. § 2255
    (f)(1), he relies on § 2255(f)(4) to toll the deadline based
    on when he could have discovered his new evidence. The Government has not
    challenged the timeliness of his § 2255 motion.
    2
    Appellate Case: 22-6190      Document: 010110817548            Date Filed: 02/24/2023   Page: 3
    and had fled prosecution. He was a fugitive at the time of Mr. Gabourel’s trial. He later
    pled guilty to a drug distribution charge. Id. at 102, 104.
    The district court denied Mr. Gabourel’s § 2255 motion because (1) he “assert[ed]
    only a freestanding claim of actual innocence, which cannot provide a substantive basis
    for relief from his convictions,” id. at 105; and (2) his new evidence failed to establish
    actual innocence, id. at 105-06. The court also denied Mr. Gabourel a COA. Id. at 107.
    II. DISCUSSION
    A federal prisoner must obtain a COA to appeal a denial of habeas relief.
    
    28 U.S.C. § 2253
    (c)(l)(B). A COA requires “a substantial showing of the denial of a
    constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). The movant must demonstrate “that jurists
    of reason could disagree with the district court’s resolution of his constitutional claims or
    that jurists could conclude the issues presented are adequate to deserve encouragement to
    proceed further.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 327 (2003).
    Mr. Gabourel argues that new evidence demonstrating actual innocence entitles
    him to relief. Actual innocence may allow habeas review of procedurally-barred
    constitutional claims, but neither the Supreme Court nor this court has recognized it as a
    freestanding ground for relief. In Herrera v. Collins, 
    506 U.S. 390
     (1993), the Supreme
    Court held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but
    instead a gateway through which a habeas petitioner must pass to have his otherwise
    barred constitutional claim considered on the merits.” 
    Id. at 404
    ; see LaFevers v. Gibson,
    
    238 F.3d 1263
    , 1265 n.4 (10th Cir. 2001) (“[A]n assertion of actual innocence, although
    operating as a potential pathway for reaching otherwise defaulted constitutional claims,
    3
    Appellate Case: 22-6190      Document: 010110817548        Date Filed: 02/24/2023     Page: 4
    does not, standing alone, support the granting of the writ of habeas corpus.”); see also
    Farrar v. Raemisch, 
    924 F.3d 1126
    , 1130-31 (10th Cir. 2019).
    Mr. Gabourel, citing McQuiggin v. Perkins, 
    569 U.S. 383
     (2013), argues “the
    Supreme Court has made clear . . . that a[n innocence] claim such as [his] should be
    avai[l]able through habeas corpus.” Aplt. Br. at 7. But in McQuiggin, the Court said it
    had “not resolved whether a prisoner may be entitled to habeas relief based on a
    freestanding claim of actual innocence.” 
    569 U.S. at 392
    ; see also Case v. Hatch,
    
    731 F.3d 1015
    , 1036 (10th Cir. 2013) (“[I]n Herrera, the Court refused to endorse
    [a freestanding actual innocence] habeas claim, and, as yet, it is an open question whether
    such a federal right exists.”).
    We have consistently denied habeas relief based on actual innocence alone.
    See, e.g., Farrar, 
    924 F.3d at 1131
     (“[A]ctual innocence does not constitute a
    freestanding basis for habeas relief.”); Vreeland v. Zupan, 
    906 F.3d 866
    , 883 n.6 (10th
    Cir. 2018) (same) (citing LaFevers, 
    238 F.3d at
    1265 n.4); United States v. Toki, 
    822 F. App’x 848
    , 853-54 (10th Cir. 2020) (unpublished) (applying the same in a § 2255
    proceeding) (cited for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A)),
    vacated on other grounds, sub nom. Maumau v. United States, 
    142 S.Ct. 57 (2021)
    .3
    3
    When no relief is available under federal statute, we have left open whether a
    prisoner may attempt to seek relief from a final criminal conviction when new cause
    arises through a writ of audita querela pled under the All Writs Act, see 
    28 U.S.C. § 1651
    (a). See United States v. Torres, 
    282 F.3d 1241
    , 1245 n.6 (10th Cir. 2002);
    Rawlins v. Kansas, 
    714 F.3d 1189
    , 1192-93 (10th Cir. 2013).
    4
    Appellate Case: 22-6190     Document: 010110817548         Date Filed: 02/24/2023     Page: 5
    Mr. Gabourel has not shown that jurists of reason could disagree with the district
    court’s denial of his § 2255 motion.4
    III. CONCLUSION
    We deny Mr. Gabourel’s application for a COA and dismiss this matter.
    Entered for the Court
    Scott M. Matheson, Jr.
    Circuit Judge
    4
    Mr. Gabourel asserts the district court erred in not holding an evidentiary hearing
    under 
    28 U.S.C. § 2255
    (b), which provides that a district court must hold an evidentiary
    hearing on a § 2255 motion “[u]nless the motion and the files and records of the case
    conclusively show that the prisoner is entitled to no relief.” Because a district court’s
    denial of an evidentiary hearing would be reviewed for abuse of discretion during a
    merits appeal, the Supreme Court has accepted a formulation of “the COA question” as
    “whether a reasonable jurist could conclude that the District Court abused its discretion.”
    Buck v. Davis, 
    580 U.S. 100
    , 123 (2017) (citation omitted). Where, as here, a habeas
    claim is capable of being resolved on the existing record, there is no entitlement to an
    evidentiary hearing. See Torres v. Mullin, 
    317 F.3d 1145
    , 1161 (10th Cir. 2003). A
    reasonable jurist could not conclude the district court abused its discretion in not holding
    an evidentiary hearing. We decline to grant a COA on this issue.
    5