United States v. Walter , 223 F. App'x 810 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 8, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2318
v. (D. New M exico)
HOSKIE W ALTER, SR., (D.C. Nos. CIV-06-404 LH/LCS
and CR-03-2073 LH)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Hoskie W alter, Sr., pleaded guilty in the United States District Court for
the District of New M exico to one count of abusive sexual contact in Indian
Country. See 18 U.S.C. §§ 1153, 2244(a)(1). The district court sentenced him to
97 months’ imprisonment followed by three years’ supervised release. His plea
agreement contained a waiver of his right to appeal, and he appealed neither his
conviction nor his sentence. Instead he filed a motion under 28 U.S.C. § 2255,
which, as far as we can discern, sought to vacate his term of supervised release
because it was not permitted by the statute of conviction, violated the
constitutional protection against double jeopardy, and violated what he calls the
“Severance Clause of the United States Constitution.” Pet’r M em. of Law in
Supp. of His § 2255 at 1, Walter v. United States, No. 06-404, (D.N.M . July 3,
2006). The M agistrate Judge’s Proposed Findings and Recommended
Disposition, which was adopted by the district court, recommended that the
motion be denied because (1) M r. W alter had not raised these issues on direct
appeal, see United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (a
defendant cannot raise issues in a § 2255 motion that he has failed to present on
direct appeal), and (2) he could not escape the procedural bar because he had not
demonstrated good cause for his procedural default and had not suffered actual
prejudice since his contentions had no merit. The district court denied his request
for a certificate of appealability (COA) to appeal the district court’s denial of his
motion, and he now applies to this court for a COA. See 28 U.S.C. § 2253(c)(1)
(requiring COA). W e deny a COA and dismiss the appeal.
A movant seeking a COA must make a “substantial showing of the denial
of a constitutional right.” § 2253(c)(2). Such a demonstration “includes showing
that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
M r. W alter has not met this standard.
The magistrate judge’s analysis of the merits of M r. W alter’s contentions
cannot reasonably be disputed. Addressing first M r. W alter’s contention that
there was no statutory authority for supervised release, we acknowledge that the
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statute under w hich he was convicted does not mention supervised release. See
18 U.S.C. § 2244(a)(1). Another statute, however, 18 U.S.C. § 3583(a), explicitly
allows the court to “include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after imprisonment.” See
also United States v. Robinson, 62 F.3d 1282, 1285 (10th Cir. 1995). As to
M r. W alter’s double-jeopardy argument, the supervised-release term was not a
multiple punishment but a congressionally authorized part of his original
sentence. See § 3583(a). Finally, no one other than M r. W alter appears to be
familiar with a “Severance Clause” in our Constitution. Some of his pleadings
suggest that he may be referring to separation-of-powers doctrine; but we fail to
see any threat to that doctrine in the imposition of a term of supervised release.
Because M r. W alter’s contentions clearly lack merit, we need not concern
ourselves with whether they are procedurally barred. W e DENY a COA and
DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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