United States v. Hartman , 487 F. App'x 437 ( 2012 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    June 26, 2012
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    v.                                            No. 11-1452
    (D.C. Nos. 1:03-CR-00582-REB-1,
    DAVID LEROY HARTMAN,                              1:07-CV-01921-REB)
    (D. Colorado)
    Defendant–Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
    Appellant, a federal prisoner, seeks a certificate of appealability to appeal
    the district court’s dismissal of his § 2255 habeas petition. In 2004, a federal jury
    found Appellant guilty of possession of a firearm by a felon, possession with
    intent to distribute a controlled substance (cocaine base and methamphetamine),
    possession of a firearm in furtherance of a drug-trafficking crime, and use of
    another’s identification to commit unlawful activity. The district court sentenced
    him to prison terms of 180 months and 12 months, to run concurrently, and a term
    *
    This order is not binding precedent except under the doctrines of law of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.
    of 60 months to run consecutively. The five-year consecutive sentence Appellant
    received was the mandatory minimum for possession of a firearm in furtherance
    of a drug crime pursuant to 
    18 U.S.C. § 924
    (c). The government added this
    charge in a superceding indictment after telling Appellant if he failed to accept
    the proffered plea agreement, it would charge him with additional crimes. On
    appeal, this court affirmed Appellant’s conviction and sentence. See United
    States v. Hartman, 194 F. App’x 537 (10th Cir. 2006). Appellant did not seek
    certiorari review.
    Appellant filed this § 2255 motion, which raises the following claims: (1)
    this court erroneously affirmed on appeal the district court’s denial of Appellant’s
    motion to suppress; (2) this court erroneously affirmed the district court’s denial
    of Appellant’s motion to sever counts; (3) Appellant received ineffective
    assistance of counsel at trial; and (4) Appellant was improperly convicted and
    sentenced based on various errors. After numerous proceedings, including a
    hearing on the ineffective assistance of counsel claim, the district court held
    Appellant was foreclosed from raising claims one and two in a collateral
    proceeding because they had already been adjudicated in the direct appeal. See
    United States v. Warner, 
    23 F.3d 287
    , 291 (10th Cir. 1994). The district court
    held claim four was procedurally barred because Appellant failed to show cause
    for failing to raise the issues in his direct appeal or actual prejudice from the
    alleged errors. See United States v. Bailey, 
    286 F.3d 1219
    , 1223 (10th Cir. 2002).
    -2-
    As to Appellant’s ineffective assistance of counsel claim, he alleged three
    specific instances of ineffective assistance of counsel: (1) counsel failed to
    retrieve discovery and investigation reports from prior, disbarred counsel; (2)
    counsel failed to have prior counsel held in contempt after he did not respond to a
    subpoena for the discovery materials; and (3) counsel improperly advised
    Appellant concerning the consequences of not accepting a plea bargain.
    Appellant also alleged counsel failed to present his medical records to the district
    court, which presumably would have prompted the court to conduct a competency
    hearing before trial.
    The district court allowed Appellant to reshape his claim at the hearing to
    focus on two allegations—Appellant received bad advice regarding the plea
    agreement, and counsel failed to consider Appellant’s mental health in her
    communications with him and should have raised a competency issue before the
    trial court. The district court ultimately held Appellant failed to show counsel’s
    conduct fell below the objective standard of reasonableness required by
    Strickland v. Washington, 
    466 U.S. 668
     (1984). Specifically, counsel “was aware
    of and considered carefully the mental health, including the competency, of
    [Appellant],” counsel “concluded reasonably that [Appellant] was competent,”
    and counsel “provided [Appellant] with timely, relevant, complete, accurate, and
    competent legal advice concerning the proposed plea agreement.” (R. Vol. 2 at
    252.) The district court concluded Appellant “failed to establish either the
    -3-
    deficient performance or prejudice prong of Strickland.” (Id. at 253.)
    To appeal the denial of his habeas petition, Appellant must obtain a
    certificate of appealability. See 
    28 U.S.C. § 2253
    (c)(1). Appellant argues
    through appointed counsel that the Supreme Court’s recent decision in Lafler v.
    Cooper, 
    132 S. Ct. 1376
     (2012), applies in this case because it clarifies, contrary
    to some courts’ interpretation, that Lockhart v. Fretwell, 
    506 U.S. 364
     (1993),
    does not stand for the proposition that conviction at a fair trial cures counsel
    incompetence in plea negotiations. However, not only did the district court not
    use Fretwell to suggest counsel’s alleged incompetencies were cured by a fair
    trial, but the district court specifically held Appellant’s counsel provided
    competent advice at the plea negotiation stage. As Lafler notes, “a defendant
    must show the outcome of the plea process would have been different with
    competent advice.” 
    132 S. Ct. at 1384
    . We agree with the district court that
    Appellant received competent advice, and we thus conclude Lafler does not assist
    Appellant’s claims.
    Appellant has also filed a pro se motion in which he raises several
    arguments regarding his claim that counsel should have requested a competency
    hearing. At the habeas hearing, counsel testified she was aware of Appellant’s
    “long history of mental illness,” but that Appellant was very smart, was “able to
    communicate fairly well,” despite being “pretty emotional,” and was “clear” and
    “under[stood] what was going on.” (R. Vol. 3 at 17.) Counsel testified she
    -4-
    therefore did not request a competency evaluation for Appellant. Counsel also
    testified as to her nine-year experience as a state public defender in dealing with
    competency issues. At the same hearing, Appellant testified trial counsel had
    “never [received] any of [Appellant’s] psychiatric records, period. She never
    checked into my mental health at all.” (Id. at 69.) In support of his pro se motion
    to this court, Appellant submitted medical-release waivers he had signed on
    November 30, 2004—after the date of his trial. 1 Appellant argues these waivers
    refute counsel’s testimony that she obtained waviers and began receiving some of
    his medical health records during the first months of her representation.
    We conclude that even if Appellant could satisfy Strickland’s first prong by
    showing counsel’s alleged failure to obtain Appellant’s medical records and move
    for a competency determination “fell below an objective standard of
    reasonableness,” 
    466 U.S. at 688
    , Appellant has not satisfied Strickland’s second
    prong. Appellant has not demonstrated he was prejudiced by counsel’s alleged
    failures because he has not shown a reasonable probability he would have been
    found incompetent to stand trial if counsel had requested and obtained a
    competency hearing. See 
    id.
     Although Appellant has a history of mental health
    issues, “[n]ot every manifestation of mental health illness demonstrates
    incompetence to stand trial.” United States ex rel. Foster v. DeRobertis, 
    741 F.2d 1
    We have no indication these are the only waivers counsel obtained.
    -5-
    1007, 1012 (7th Cir. 1984). There is no indication Appellant did not have a
    rational understanding of the proceedings against him, and all of the evidence
    indicates he was able to assist counsel and understand the charges against him.
    After carefully reviewing Appellant’s brief, his pro se motion, and the
    record on appeal, we conclude reasonable jurists would not debate whether the
    district court erred in dismissing the petition. 2 See Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). We therefore DENY the application for a certificate of
    appealability and DISMISS the appeal. We DENY Appellant’s motion to appoint
    new habeas counsel.
    ENTERED FOR THE COURT
    Monroe G. McKay
    Circuit Judge
    2
    Appellant’s only arguments in both his counseled brief and his pro se
    motion concerned his ineffective assistance of counsel claim. He made no
    arguments regarding the district court’s dismissal of his other § 2255 claims.
    Regardless, we agree with the district court’s dismissal of these claims and have
    nothing to add to its thorough analysis. Reasonable jurists would not debate
    whether the district court erred in dismissing these claims. See Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000).
    -6-
    

Document Info

Docket Number: 11-1452

Citation Numbers: 487 F. App'x 437

Judges: Briscoe, Holmes, McKAY

Filed Date: 6/26/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023