United States v. Christy , 683 F. App'x 710 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 31, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-2184
(D.C. Nos. 1:15-CV-00881-JB-LAM and
EDWARD CHRISTY, 1:10-CR-01534-JB-1)
(D. N.M.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, HARTZ and BACHARACH, Circuit Judges.
Edward Christy, proceeding pro se, seeks a certificate of appealability (COA) in
order to appeal the district court’s dismissal with prejudice of his 28 U.S.C. § 2255
motion. Because we conclude that Christy has failed to demonstrate entitlement to a
COA, we deny his request and dismiss this matter.
I
On May 26, 2010, Christy was originally indicted on four counts: one count of
transportation with intent to engage in criminal sexual activity in violation of 18 U.S.C.
§ 2423(a) (“coercion and enticement”), and three counts of possession of child
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), and 2256. These charges
related to Christy’s conduct with a sixteen-year-old girl. A subsequent information
repeated the same charges, but included only one count of possession of child
pornography.
In 2011, Christy entered into a plea agreement in which he plead guilty to both
charges alleged in the information and received two concurrent, 108-month sentences,
followed by a lifetime term of supervised release. In the agreement, Christy expressly
waived his rights to challenge his convictions on direct appeal or collaterally in a § 2255
proceeding, except on the ground that his counsel was ineffective in negotiating or
entering into the plea agreement or the appeal waivers in it. However, he did retain the
right to appeal the denial of his motion to suppress. At sentencing, the government
requested and obtained a dismissal of the original indictment. Christy later appealed the
district court’s denial of his motion to suppress. We affirmed. United States v. Christy,
739 F.3d 534 (10th Cir. 2014).
In 2014, an unrelated New Mexico Supreme Court case effectively called into
question the validity of Christy’s coercion and enticement conviction. Coercion and
enticement is a federal crime that punishes “criminal sexual activity,” which includes
“any sexual activity for which any person can be charged with a criminal offense.” 18
U.S.C. § 2422(a). In New Mexico, a person can be charged with the criminal offense of
Criminal Sexual Penetration in the Second Degree. See N.M. STAT. ANN. 1978 § 30-9-
11(E)(5). Criminal sexual penetration is “the unlawful and intentional causing of a
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person to engage in” certain sex acts, including intercourse. Id. § 30-9-11(A). The
government argued that Christy had violated this New Mexico statute, satisfying the
“criminal sexual activity” element for coercion and enticement. After Christy’s direct
appeal concluded, the New Mexico Supreme Court clarified that one cannot commit
criminal sexual penetration with a partner who legally consented. See State v. Stevens,
2014-NMSC-011, ¶ 2, 323 P.3d 901. Because the young woman in Christy’s case
consented and was sixteen years old, the age of consent in New Mexico, Christy could
not have committed the underlying state crime and thus could not be guilty of the federal
crime of coercion and enticement.
In 2015, Christy filed a § 2255 petition pro se attacking both convictions. In light
of Stevens, the district court vacated Christy’s coercion and enticement conviction.
However, the district court did not vacate the child pornography conviction. Instead, the
court gave Christy the option of choosing either to withdraw his guilty plea as to the child
pornography count, which would allow the government to reinstate the pornography
charges in the original indictment, or to retain his plea and sentence. On June 30, 2016,
the district court ordered that the parties’ elections be filed in the underlying criminal case
and then dismissed Christy’s § 2255 motion with prejudice. Christy chose to withdraw his
guilty plea on July 25, 2016, and the government reinstated the indictment’s child
pornography charges on August 4, 2016. The district court also declined to issue a COA.
Christy, still pro se, then filed a Motion to Reconsider Denial of Certificate of
Appealability. The district court construed this motion as a second or successive § 2255
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motion over which it lacked jurisdiction and explained that Christy had to request
authorization from this court to file a second such motion, citing Spitznas v. Boone, 464
F.3d 1213, 1217 (10th Cir. 2006). Christy now seeks a COA from this court.
II
This court has jurisdiction to review a district court’s “final order” in a § 2255
proceeding. 28 U.S.C. § 2253(a); see also 28 U.S.C. § 1291. Unlike the situation where
the district court grants a § 2255 motion and orders resentencing, as was the case in
Andrews v. United States, 373 U.S. 334 (1963), the net effect of the district court’s order
here was to grant Christy a new trial on his now reinstated and pending pornography
charges. The procedural status of this case is more akin to the circumstance noted in
United States v. Hadden, 475 F.3d 652, 662-63 (4th Cir. 2007), where the district court’s
order granting a new trial completes the § 2255 proceeding and is immediately appealable,
in spite of the fact that further action is contemplated before the district court, i.e.,
conducting a new trial.
Contrary to the district court’s view, we do not consider Christy’s Motion to
Reconsider Denial of Certificate of Appealability as a second or successive § 2255 motion.
We are left then to consider his request for a COA to contest the district court’s rejection
of his petition. In order to obtain a COA, Christy must make “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). Where, as in this case, a district
court dismisses a § 2255 motion on procedural grounds, Christy must make two threshold
showings: “[1] that jurists of reason would find it debatable whether the [§ 2255 motion]
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states a valid claim of the denial of a constitutional right, and [2] that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Gonzalez v. Thaler, __U.S.__ , 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
This he has not done. The district court, despite Christy having pleaded guilty and
expressly waived any challenges to his convictions, granted Christy relief on his 18 U.S.C.
§ 2423(a) charge and also gave Christy the option of withdrawing his guilty plea on the
pornography count – which he has now done. In his application for a COA, Christy argues
that, for a number of reasons, the district court erred in concluding that his plea to the §
2423(a) charge was knowing and voluntary. Because he has been permitted to withdraw
his plea, these claims are now moot.
III
Because Christy has provided no viable basis for relief, and because reasonable
jurists would not find the district court’s denial of his claims debatable or wrong, we
DENY his request for a COA and dismiss the matter. We GRANT his motion to proceed
in forma pauperis.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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