United States v. Hopper ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 31, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2110
(D.C. Nos. 2:18-CV-00137-KG-KK and
POLLY HOPPER, 2:14-CR-02130-KK-3)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
_________________________________
Polly Hopper, a federal prisoner appearing pro se, 1 seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of her 28 U.S.C. § 2255motion to vacate, set aside, or correct her sentence. See 28 U.S.C. § 2253(c)(1)(B)
*
This order and judgment is not binding precedent, except under the doctrines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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Ms. Hopper is pro se, we construe her filings liberally, but we do not
act as her advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
(requiring a COA to appeal an order denying a § 2255 motion). Exercising
jurisdiction under 28 U.S.C. § 1291, we deny her request and dismiss this matter.
I. BACKGROUND
A jury convicted Ms. Hopper of kidnapping and conspiracy to commit
kidnapping. The district court sentenced her to 292 months in prison on each count,
to be served concurrently. On appeal, she argued that her trial should have been
severed from her co-defendants, the evidence was insufficient to support her
convictions, and her sentence was substantively unreasonable. We rejected these
arguments and affirmed. United States v. Hopper, 663 F. App’x 665 (10th Cir. 2016)
(unpublished).
In her § 2255 motion, Ms. Hopper claimed that her trial counsel was
ineffective for failing to call certain witnesses and for inducing her not to accept a
plea offer, and that she was innocent. In a 30-page Proposed Findings and
Recommended Disposition, the magistrate judge analyzed these claims and
recommended that they be denied. The district judge agreed with the
recommendation, denied Ms. Hopper’s § 2255 motion, and denied a COA.
II. DISCUSSION
Ms. Hopper may not appeal the district court’s denial of her § 2255 motion
without a COA. 28 U.S.C. § 2253(c)(1)(B); see United States v. Gonzalez, 596 F.3d
1228, 1241 (10th Cir. 2010). To obtain a COA, she must make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and show
“that reasonable jurists could debate whether . . . the petition[s] should have been
2
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted).
In her brief to this court, Ms. Hopper does not argue the ineffective assistance
of counsel and innocence claims alleged in her § 2255 motion and rejected by the
district court. We therefore need not address them. See United States v. Springfield,
337 F.3d 1175, 1178 (10th Cir. 2003) (declining to address a claim raised in a § 2255
motion that was not included in the COA application or brief to this court); see also
Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (noting the waiver rule, under
which “[a]rguments not clearly made in a party’s opening brief are deemed waived,”
applies even to pro se litigants who “are entitled to liberal construction of their
filings”). Moreover, by not presenting any argument on her § 2255 claims, Ms.
Hopper has not shown that reasonable jurists could debate the correctness of the
district court’s decision. She therefore is not entitled to a COA.
Ms. Hopper instead argues here that she should be granted relief in light of the
U.S. Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), and
this court’s decision in United States v. Salas, 889 F.3d 681 (10th Cir. 2018), both of
which held that the residual clause in 18 U.S.C. § 924(c)(3) is unconstitutional.
Based on those cases, she contends that her conviction for kidnapping under
18 U.S.C. § 1201(a) cannot be a “crime of violence” under that provision. But
whether kidnapping is a crime of violence under § 924(c)(3) matters only to
determining if Ms. Hopper could have been convicted and sentenced under 18 U.S.C.
3
§ 924(c)(1)(A) for using, carrying, or brandishing a firearm during and in relation to
a crime of violence. Unlike her co-defendants, Ms. Hopper was not charged or
convicted of this offense, so Davis and Salas are not relevant to her convictions or
sentence.
In any event, the claim she wishes to present on appeal was not raised in her
§ 2255 motion, was not addressed by the district court, and therefore cannot be
considered here. “Because this [added] claim [for COA] was not presented to the
district court, we decline to consider it on appeal . . . .” Dockins v. Hines, 374 F.3d
935, 940 (10th Cir. 2004); see United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.
2012) (stating “our general rule against considering issues for the first time on
appeal” and declining to address arguments for COA that pro se applicant failed to
raise in district court).
III. CONCLUSION
We deny a COA and dismiss this matter. We deny the motion to appoint
counsel.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
4