United States v. Krueger ( 1998 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 1 1998
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 97-6262
    (D.C. No. CIV-96-498-C)
    HAROLD FREDERICK KRUEGER,                            (W.D. Okla.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Harold Frederick Krueger appeals from the district court’s order denying
    his motion to vacate, set aside, or correct his sentence pursuant to 
    28 U.S.C. § 2255
    . Appellant was convicted and sentenced on counts of conspiracy, mail
    fraud, wire fraud, and money laundering. Our jurisdiction arises under 
    28 U.S.C. §§ 1291
     and 2553. Because appellant’s § 2255 motion was filed after the
    enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the
    certificate of appealability provision created by that act is applicable to his case.
    Cf. United States v. Kunzman, 
    125 F.3d 1363
    , 1364 n.2 (10th Cir. 1997), cert.
    denied, No. 97-8055, 
    1998 WL 86544
     (U.S. Mar. 30, 1998). The district court
    denied appellant a certificate of appealability. Therefore, appellant must
    demonstrate “a substantial showing of the denial of a constitutional right” before
    this court considers his appeal. 
    28 U.S.C. § 2253
    (c)(2).
    Appellant presents six arguments on appeal. In his first two points, he
    challenges as false certain testimony of agent Barry Black and witness Crawford
    Cameron presented to the grand jury which indicted him. Before the district
    court, he contended that this and other allegedly false evidence demonstrated
    ineffective assistance of counsel, asserting that his counsel should have filed
    a pre-trial motion to dismiss the indictment. The district court concluded that
    this argument was moot in light of the jury’s findings convicting appellant on all
    counts of the indictment and this court’s affirmance of his conviction on
    -2-
    sufficiency of evidence grounds. District Court Order at 5. We agree, and note
    that appellant does not challenge the district court’s analysis or ruling on this
    point. His arguments on appeal do not demonstrate ineffective assistance of
    counsel.
    Appellant’s third and fourth arguments assert that certain evidence
    presented at trial was false. He alleges as false witness Mark Lippert’s testimony
    regarding the dates of execution and notarization of a lease document. The
    district court ruled that because the lease itself was admitted as evidence at trial,
    the issue about the dates of execution and notarization was not falsely presented
    to the jury. Appellant argues that the lease document could not correct Lippert’s
    allegedly false testimony, and contends that this evidence “was very material to
    destroying Appellant’s veracity with the Jury.” Appellant’s Br. at 7. He also
    contends that the trial court erred in omitting testimony from Jane Hardin which
    would have demonstrated the existence of Barry Kent. The district court rejected
    this contention, noting that the matter was “fully explored” at trial, District Court
    Order at 3, and that evidence was presented on both sides. Appellant responds
    that omitting this evidence allowed the government to impeach his credibility and
    served as a basis for a sentencing enhancement. Because we agree with the court
    that evidence was admitted at trial from which the jury could have believed
    appellant’s version of the facts on both of these points, and because credibility is
    -3-
    the unique province of the jury, see United States v. Smith, 
    131 F.3d 1392
    , 1399
    (10th Cir. 1997), cert. denied, 
    118 S. Ct. 1109
     (1998), these arguments do not
    demonstrate error of constitutional magnitude.
    Appellant’s fifth point contends that the government’s response to his
    § 2255 motion did not address all of his arguments and, therefore, the district
    court should have considered those matters admitted under Rule 8(d) of the
    Federal Rules of Civil Procedure. Our review of the government’s response,
    however, indicates that the government addressed each of appellant’s arguments,
    including those he specifically identifies on appeal. Further, we conclude that
    Rule 8(d) applies to factual averments, not legal argument. Appellant’s final
    contention challenges the district court’s order as incomplete. We have
    reviewed the court’s order in light of his specific complaints and conclude
    that the district court thoroughly addressed all of the issues raised in appellant’s
    § 2255 motion. This argument is without merit.
    Because appellant’s arguments on appeal fail to demonstrate a substantial
    showing of the a denial of a constitutional right, we deny appellant’s application
    for a certificate of appealability. Accordingly, this appeal is DISMISSED.
    -4-
    Appellant’s request for a hearing on his § 2255 motion is denied as moot.
    The mandate shall issue forthwith.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -5-
    

Document Info

Docket Number: 97-6262

Filed Date: 4/1/1998

Precedential Status: Non-Precedential

Modified Date: 4/17/2021