United States v. Taylor , 492 F. App'x 941 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 13, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-6054
(W.D. of Okla.)
v. (D.C. Nos. 5:11-CV-00576-F and
5:08-CR-00210-F-1)
LARRY COLLIER TAYLOR, JR.,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Larry Collier Taylor, Jr., a federal prisoner, seeks a certificate of
appealability to appeal the district court’s order dismissing his 28 U.S.C. § 2255petition for post-conviction relief. We construe his filings liberally because he is
proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has 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 cause is therefore ordered submitted without oral argument.
1991). Taylor claims, among other things, that his trial counsel was ineffective
because she prevented him from testifying at a suppression hearing.
Finding no merit in Taylor’s application, we DENY it.
I. Background
On May 20, 2008, police officers in Houston, Texas pulled over a car
driven by Taylor after observing several traffic violations. Because Taylor could
produce no license, registration, insurance verification, or rental agreement, the
officers arrested him and impounded the car. An inventory of the car revealed a
firearm and approximately $17,000 cash, some of it bundled together with straps
bearing the name of the Peoples State Bank. The officers turned the investigation
over to the FBI, who linked this evidence to a car jacking and bank robbery in
Lawton, Oklahoma two weeks earlier.
Taylor was charged in the Western District of Oklahoma with car jacking,
bank robbery, and using a firearm during a violent crime. His assigned counsel
was Teresa Brown. Taylor filed a motion to suppress the evidence obtained on
May 20, 2008, which was denied after an evidentiary hearing. A jury
subsequently found Taylor guilty on all counts. Taylor, with the help of a new
counsel, Jeffrey Byers, filed a motion for a new trial, arguing, among other
things, that his trial counsel rendered ineffective assistance at the suppression
hearing. The court denied the motion and sentenced Taylor to 181 months’
imprisonment.
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For his direct appeal, Taylor changed counsel yet again. Taylor appealed
the district court’s ruling on the suppression motion, arguing that the police
inventory of the car violated the Fourth Amendment’s prohibition on
unreasonable search and seizure. He also contested the sufficiency of the
evidence supporting his car jacking conviction. But he did not directly appeal his
ineffective-assistance claim. We rejected Taylor’s arguments and affirmed his
convictions. See United States v. Taylor, 592 F.3d 1104, 1109 (10th Cir. 2010).
Taylor then challenged his convictions pursuant to 28 U.S.C. § 2255,
arguing seven grounds for relief. Six of these grounds related to ineffective
assistance rendered by Teresa Brown, while the last ground claimed ineffective
assistance by Jeffrey Byers. The district court rejected Taylor’s § 2255 petition
and denied a certificate of appealability.
In the present application for COA, Taylor maintains four of the seven
original grounds for relief, all against Brown: (1) failure to thoroughly cross-
examine Officer Bryan, one of the officers who participated in the traffic stop, at
the suppression hearing; (2) failure to contest the legality of the traffic stop; (3)
refusal to allow Taylor to testify at the suppression hearing; and (4) cumulative
error.
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II. Discussion
A. Standard of Review
We may not grant a certificate of appealability unless “the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “To meet this standard, a petitioner 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.” Boutwell v. Keating, 399 F.3d 1203, 1211
(10th Cir. 2005) (internal quotation marks omitted).
To prevail on his claim of ineffective assistance of counsel, Taylor must
show that (1) his counsel’s performance fell below an objective standard of
reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2)
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694. In analyzing the
first prong, we apply the strong presumption that “counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 689.
B. Grounds Previously Addressed
Two of the grounds Taylor advances in support of his ineffective-assistance
claim were already adjudicated by the district court pursuant to his motion for a
new trial. On a collateral challenge to a conviction, we do not consider claims
that we have already considered and disposed of on direct appeal. United States
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v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Typically, we also do not consider
claims that could have been raised on direct appeal but were not, unless the
petitioner can demonstrate cause and prejudice for the default, or a fundamental
miscarriage of justice will result. United States v. Cervini, 379 F.3d 987, 990
(10th Cir. 2004).
Ineffective-assistance claims present an exception to the typical rule.
Inmates are not required to raise ineffective-assistance claims on direct appeal,
but may raise them for the first time in a collateral proceeding. Massaro v.
United States, 538 U.S. 500, 504 (2003). But a defendant retains the option to
raise an ineffective-assistance claim in the direct appeal. Id.This exception raises the question: if a defendant opts to raise an
ineffective-assistance claim on direct appeal, can he then raise it again in a
collateral proceeding? We have answered with a qualified yes: a subsequent
ineffectiveness claim in a § 2255 petition is not barred if it is “based on different
grounds” than the ineffective-assistance claim brought on direct appeal. United
States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995); accord Yick Man Mui v.
United States, 614 F.3d 50, 56 (2d Cir. 2010). But see Peoples v. United States,
403 F.3d 844, 847 (7th Cir. 2005) (rejecting Galloway and holding that
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subsequent ineffective-assistance claims are barred, even if based on different
grounds). 1
Here, two of the four grounds for Taylor’s ineffective-assistance claim
were already argued in his motion for a new trial before the district court. These
grounds related to Brown’s failure to adequately cross-examine government
witnesses and adequately contest the legality of the stop. While Taylor’s motion
for a new trial did not frame these grounds in precisely the same manner his
application for COA does, it was based on the same essential factual and legal
issues. See Yick Man Mui, 614 F.3d at 56 (requiring “all legal or factual
arguments to be made in the case of a particular strategy, action, or inaction of a
lawyer alleged to constitute ineffective assistance.”). Because Taylor raised these
issues in the district court, and then failed to raise them on direct appeal, the
procedural bar applies.
That leaves two grounds that were not addressed in prior proceedings: (1)
Brown’s failure to allow Taylor to testify at the suppression hearing; and (2)
cumulative error by Brown. The cumulative-error ground is easily dismissed
because only one other ground remains; thus, the error cannot be cumulative.
1
Some states follow the rule that ineffective-assistance claims must be
raised on direct appeal if trial counsel and appellate counsel are different. In
habeas proceedings under § 2254, we enforce such rules insofar as they comport
with the Sixth Amendment. See English v. Cody, 146 F.3d 1257, 1261 (10th Cir.
1998). No such rule applies in the federal court system, however.
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C. Brown’s Failure to Allow Taylor to Testify
Taylor alleges Brown rendered ineffective assistance by preventing him
from testifying at the suppression hearing. According to Taylor, he first notified
Brown of his wish to testify during the suppression hearing itself, after listening
to the testimony of the officers who conducted the traffic stop. He claims Brown
dissuaded him from testifying by telling him:
(1) the judge would not accept the [sic] his testimony over the
officers; (2) it didn’t matter what the petitioner said because the
judge’s mind was already made up; (3) that the judge would not let
him prevail on the issue, because he had been caught with the money
and the gun and that there was no way that the judge would let them
be suppressed; and (4) that if he did decide to take the stand in
contention to the officers’ testimony he would be charged with an
obstruction.
Aplt. Br. at 12–13. Taylor claims Brown’s statements violated his constitutional
right to testify in his own defense.
Taylor relies heavily on Cannon v. Mullin, 383 F.3d 1152 (10th Cir. 2004).
There, the petitioner alleged he told his counsel “[i]n more than one pre-trial
conference” that he wanted to testify at trial, and reiterated this request at the
start of the trial. Id. at 1170. His counsel, however, “became enraged,” told him
she would make the decisions, and that it was too late for him to testify because
he was not on the witness list. Id. at 1171. Additionally, when the government
rested its case and called on the defense, the petitioner prepared to get up to
testify, but counsel “quickly sprang out of the chair and said that the defense rests
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in order to cut [him] off.” Id. The district court denied petitioner’s habeas
petition without holding an evidentiary hearing, and petitioner appealed.
We remanded for an evidentiary hearing. See id. at 1177. We found that
petitioner’s allegations, if true, would constitute “a dereliction of duty by
counsel,” because “counsel lacks authority to prevent a defendant from testifying
in his own defense, even when doing so is suicidal trial strategy.” Id. at 1171.
We also found a substantial probability of prejudice because the petitioner’s
“testimony, and his demeanor while testifying, could have special significance to
the jury” on the issue of mens rea. Id. at 1172. We recognized, however, that
counsel has an obligation to “discuss with the defendant the strategic implications
of choosing whether to testify, and should make a recommendation to the
defendant.” Id. at 1171.
We agree with the district court that the facts here differ significantly from
Cannon. First, as far as Taylor alleges, he did not express his desire to testify
until the middle of the suppression hearing. Although Brown was required to
offer Taylor reasonable counseling, see Wimberly v. McKune, 141 F.3d 1187, *3
(10th Cir. 1998) (unpublished) (citing Lema v. United States, 987 F.2d 48, 52–53
(1st Cir. 1993)), the quality of counseling will necessarily suffer when a request
is sprung upon counsel at the last minute. Under such circumstances, advice
rendered in what are perhaps less-than-lawyerly terms does not constitute
ineffective assistance. Second, although Brown advised Taylor against testifying,
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she did not actually prevent him from doing so, as did the defense counsel in
Cannon. In addition, Brown’s warning regarding potentially being charged with
obstruction of justice was not unfounded, as the right to testify does not extend to
a right to testify untruthfully. See United States v. Alexander, 292 F.3d 1226,
1235 (10th Cir. 2002). Finally, the facts here do not show that Taylor was
unaware of his rights; to the contrary, he actually did testify at the suppression
hearing on a different matter.
On the facts presented, we find Brown’s performance was “within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Accordingly, we need not reach the issue of prejudice.
III. Conclusion
For the reasons stated above, we DENY Taylor’s application for a
certificate of appealability. Taylor’s motion to proceed in forma pauperis is
DENIED.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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