United States v. Behrens , 647 F. App'x 850 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 17, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-8002
(D.C. Nos. 2:15-CV-00089-NDF and
ERIC BEHRENS, 2:10-CR-00280-NDF-1)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before KELLY, McKAY, and MORITZ, Circuit Judges.
_________________________________
After his direct appeal proved unsuccessful, Eric Behrens sought relief under
28 U.S.C. § 2255. The district court denied Behrens’ § 2255 motion and his request
for a certificate of appealability (COA). Behrens now asks us for a COA so he can
appeal the district court’s decision. Because Behrens fails to “demonstrate that
reasonable jurists would find the district court’s assessment of” his Sixth Amendment
claim “debatable or wrong,” we deny Behrens’ request for a COA and dismiss the
appeal. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
*
This order is not binding precedent, except under the doctrines of law of the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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
BACKGROUND
Four days before Behrens’ trial on federal drug charges was scheduled to
begin, his trial counsel advised Behrens that he wasn’t prepared for trial and asked
whether Behrens would be “willing to postpone the matter.” United States v.
Behrens, 551 F. App’x 452, 460 (10th Cir. 2014) (unpublished) (Ebel, J., concurring
in part and dissenting in part). Behrens acquiesced and trial counsel moved for a
continuance, asserting he needed more time to prepare. Id.
The trial court denied the motion for continuance. But when Behrens
personally told the trial court that he was concerned about counsel’s level of
preparedness, trial counsel admitted to the court that Behrens’ concerns were not
unfounded: trial counsel had yet to contact a previously identified witness whose
importance he initially overlooked. Id. at 460-61.
By all indications, trial counsel’s failure to contact this potential witness was
an oversight, not a strategic decision. See id. at 457 (majority opinion) (“Whether this
delayed realization [regarding the witness’ importance] was the result of devoting
time to other matters or [trial counsel’s] own misapprehension is not clear.”). Even
the government recognized as much. See id. at 460-61 (Ebel, J., concurring in part
and dissenting in part). Nevertheless, the trial court characterized Behrens’ concerns
as implicating matters of trial strategy—matters it entrusted to counsel’s discretion.
Id. at 461. So when trial counsel sought to withdraw from the case, the district court
denied his request. But it did grant Behrens’ subsequent request to proceed pro se. Id.
2
The jury ultimately found Behrens guilty of one count each of conspiring to
possess with intent to distribute and to distribute methamphetamine, in violation of
21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A); and possessing methamphetamine with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Facing a
240-month prison sentence, Behrens appealed. In relevant part, he argued that his
decision to represent himself at trial was involuntary “because he was forced to
choose between appearing pro se or proceeding with unprepared counsel.” Behrens,
551 F. App’x at 456.
The majority of a divided panel of this court disagreed. Although the majority
recognized that trial counsel admitted “he had yet to contact one witness whose
importance he had not yet realized,” it reasoned that counsel still had time—“albeit at
the last minute”—to contact that particular witness. Id. at 457. Thus, the majority
concluded, “counsel could have provided reasonably effective assistance,” and
Behrens’ decision to proceed pro se was voluntary. Id.
After this court affirmed his convictions, Behrens sought post-conviction relief
under § 2255. In relevant part, he asserted that appellate counsel was ineffective in
failing to seek a limited remand to the trial court for purposes of expanding the
record to support Behrens’ involuntary-waiver-of-counsel claim.1 During that
remand, Behrens said, appellate counsel could have provided an affidavit or
1
Behrens also raised three additional grounds for relief in his motion. But in
his application for COA, Behrens focuses solely on his claim that appellate counsel
was ineffective in failing to provide an adequate record to support Behrens’
involuntary-waiver argument. Accordingly, we limit our discussion to that claim.
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testimony from trial counsel in which trial counsel admitted to being unprepared for
trial. Armed with that additional evidence, Behrens posited, the divided panel that
rejected his involuntary-waiver argument on direct appeal would have reached a
different result.
The district court found Behrens’ ineffective-assistance-of-appellate-counsel
claim meritless and denied his § 2255 motion. And because the district court found
that Behrens failed to make “a substantial showing of the denial of a constitutional
right,” it also denied his request for a COA. R. vol. 1, 155 (quoting 28 U.S.C.
§ 2253(c)(2)).
DISCUSSION
Behrens argues that we should grant his request for a COA because the district
court erred in rejecting his ineffective-assistance-of-appellate-counsel claim. We may
grant Behrens’ request only if he “demonstrate[s] that reasonable jurists would find
the district court’s assessment of” that claim “debatable or wrong.” Slack, 529 U.S. at
484.
In support of his Sixth Amendment claim, Behrens provided the district court
with a sworn affidavit in which he recounted a recent telephone conversation with
trial counsel. During that conversation, Behrens attested, trial counsel stated that if
“appellate counsel [had] been granted a limited remand,” trial counsel “would have
testified that he was unprepared for trial.” R. vol. 1, 35. This evidence, Behrens
argued, likely would have changed the outcome of his direct appeal.
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The district court disagreed. First, it criticized Behrens for failing to provide
any evidence beyond his own sworn affidavit that suggested trial counsel might have
testified to his own unpreparedness. Second, it suggested that the record directly
contradicted that assertion.
For instance, the district court noted, trial counsel explicitly informed the trial
court “that he was ready to proceed.” R. vol. 1, 150. Moreover, the district court
maintained, “trial counsel essentially said that [any witnesses he failed to contact]
were witnesses that Behrens wanted him to contact, but that counsel did not believe
were necessary.” Id. Thus, the district court reasoned that “nothing in the record . . .
suggest[ed] that Behrens’ trial counsel would provide a sworn affidavit stating he
was unprepared to go to trial, when he was unwilling to state on the record at the time
of the request for continuance that he was unprepared to go to trial.” Id. And because
the record contained no evidence suggesting trial counsel would have testified to his
own unpreparedness, the district court concluded, Behrens couldn’t demonstrate that
appellate counsel’s failure to expand the record to contain such nonexistent testimony
constituted deficient performance. See Strickland v. Washington, 466 U.S. 668, 687
(1984) (explaining that defendant seeking to establish ineffective assistance of
counsel must “[f]irst . . . show that counsel’s performance was deficient”).
The district court’s analysis is problematic in two respects. First, we question
the district court’s finding that the only witnesses trial counsel said he failed to
contact were those he “did not believe were necessary.” R. vol. 1, 150. This
characterization of the record overlooks an undisputed fact: whether “the result of
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devoting time to other matters or his own misapprehension,” trial counsel admitted he
“had yet to contact one witness whose importance” trial counsel realized on the eve
of trial. Behrens, 551 F. App’x at 457.
Second, we question the district court’s finding that the record belies Behrens’
assertion that trial counsel was willing to testify he was unprepared for trial. True,
trial counsel did initially state before voir dire that he was prepared to proceed. But
when the trial court questioned him about Behrens’ concerns, trial counsel was fairly
candid about his own unpreparedness: trial counsel acknowledged, “[T]here are
witnesses . . . that I haven’t yet called or interviewed”; admitted, “[F]or the last two
months I have been working on other matters”; and allowed, “I can understand
[Behrens’] concerns.” Behrens, 551 F. App’x at 460 (Ebel, J., concurring in part and
dissenting in part).
Under these circumstances, Behrens’ sworn statement that trial counsel said he
was willing to testify to his own unpreparedness isn’t “wholly incredible.” United
States v. Estrada, 849 F.2d 1304, 1307 (10th Cir. 1988) (quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977)). Nor is it “contradicted by the files and records
before the court.” Putnam v. United States, 337 F.2d 313, 315 (10th Cir. 1964). Thus,
the district court should have accepted it as true for purposes of evaluating Behrens’
Sixth Amendment claim. See id. We must do the same. See Owens v. United States,
483 F.3d 48, 57 (1st Cir. 2007) (“If a district court dismisses a § 2255 claim without
holding an evidentiary hearing, we take as true the sworn allegations of fact set forth
in the petition ‘unless those allegations are merely conclusory, contradicted by the
6
record, or inherently incredible.’” (quoting Ellis v. United States, 313 F.3d 636, 641
(1st Cir. 2002))).
Nevertheless, we are constrained to agree with the district court’s
conclusion—however cursory it might be—that Behrens failed to establish there was
a reasonable probability he would have prevailed on direct appeal but for appellate
counsel’s failure to obtain a limited remand for the purpose of expanding the record.
See Strickland, 466 U.S. at 694 (“The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”); see also Smith v. Robbins, 528 U.S. 259, 285 (2000)
(explaining that two-part Strickland test applies to allegations of ineffective
assistance of appellate counsel).
The only evidence that Behrens suggests appellate counsel might have added
to the record on remand is trial counsel’s statement that “he was unprepared for
trial.”2 R. vol. 1, 35. The problem is that Behrens fails to provide any details
2
Because Behrens proceeds pro se, we liberally construe his filings. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Thus, we might
generously read Behrens’ request for a COA to suggest that appellate counsel was
also ineffective in failing to expand the record to include an affidavit from Behrens
stating that, immediately before Behrens asked to proceed pro se, trial counsel
informed him that he still hadn’t contacted the witness he told the trial court he
would contact. The district court didn’t evaluate this argument—perhaps because
Behrens’ § 2255 motion didn’t squarely present it. And we typically won’t address an
argument advanced for the first time in a request for a COA. See United States v.
Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). In any event, Behrens doesn’t assert
that he told appellate counsel about trial counsel’s disclosure. Thus, we decline to
grant a COA on this basis. See United States v. Miller, 907 F.2d 994, 999 (10th Cir.
1990) (explaining that “[t]he reasonableness of an attorney’s decision not to conduct
an investigation is directly related to the information the defendant has supplied”
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regarding trial counsel’s alleged unpreparedness. It is possible that in admitting he
was unprepared, trial counsel was alluding to new and different deficiencies that
weren’t already before this court when a divided panel affirmed Behrens’
convictions. Or perhaps trial counsel was simply referring to facts the panel majority
had before it but found unproblematic, e.g., that trial counsel failed to realize that a
previously identified witness was important to his theory of the case until the eve of
trial, and that “for the last two months,” trial counsel had “been working on other
matters.” Behrens, 551 F. App’x at 460 (Ebel, J., concurring in part and dissenting in
part).
Without more information about the testimony trial counsel might have been
willing to provide, we can’t say that reasonable jurists would debate the district
court’s conclusion that Behrens failed to establish there was a reasonable probability
that the result of his direct appeal would have been different but for appellate
counsel’s failure to expand the record to include that testimony. See Slack, 529 U.S.
at 484; Strickland, 466 U.S. at 694. Accordingly, we deny Behrens’ request for a
(quoting Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir. 1986))); see also Davis
v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (noting that we may deny COA on any
basis that finds support in the record).
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COA and dismiss the appeal.
Entered for the Court
Nancy L. Moritz
Circuit Judge
9