United States v. Neighbors , 607 F. App'x 795 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 20, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3020
(D.C. Nos. 2:13-CV-02239-CM and
CARRIE MARIE NEIGHBORS, 2:07-CR-20124-CM-1)
(D. Kansas)
Defendant - Appellant.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILITY
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Carrie Marie Neighbors, a federal prisoner proceeding pro se,1 seeks to appeal the
district court’s dismissal in part and denial in part of her motion to reconsider the denial
of relief under 28 U.S.C. § 2255. For the reasons explained below, we deny a certificate
of appealability (COA), conclude Ms. Neighbors is not authorized to file a second or
successive petition in the district court, and dismiss the matter.
 This order is not binding precedent, except under the doctrines of law of the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.
1
Because Ms. Neighbors appears pro se, we liberally construe her filings. Yang v.
Archuleta, 525 F.3d 925, 927 (10th Cir. 2008); Hall v. Scott, 292 F.3d 1264, 1266 (10th
Cir. 2002).
I. BACKGROUND
A jury convicted Ms. Neighbors in 2010 of wire fraud, money laundering, and
related conspiracy charges. The United States District Court for the District of Kansas
sentenced her to 97 months in prison. Ms. Neighbors appealed, and we affirmed her
conviction and sentence. United States v. Neighbors, 457 F. App’x 785 (10th Cir. 2012).
Ms. Neighbors, through habeas counsel, filed in the district court a § 2255 petition
attacking the validity of her conviction and sentence. She claimed her trial counsel was
ineffective for, among other things, failing to object to the Presentence Report’s loss
calculation because it included the gross, not net, profits of the illegal enterprise in
contravention of United States v. Santos, 553 U.S. 507, 509 (2008) (holding that when
the government alleges that the defendant laundered the “proceeds” of an illegal
gambling business, the government must prove that the laundering transactions involved
the profits of the business, rather than its gross receipts). She also claimed that her
sentence was procedurally unreasonable because it was calculated in violation of Alleyne
v. United States, ___ U.S.___, 133 S. Ct. 2151 (2013) (holding that any fact that increases
a mandatory minimum sentence for a crime is an “element” of the crime, not a
“sentencing factor,” that must be submitted to jury), that the district court erred in failing
to appoint new counsel, and that her right to a speedy trial was violated.
The district court denied relief. It concluded Ms. Neighbors could not establish
counsel was deficient under Strickland v. Washington, 466 U.S. 668 (1984), and that
although Alleyne was decided while her habeas case was pending, it was not made
retroactively applicable to cases on collateral review. The district court further concluded
2
she was procedurally-barred from bringing the other claims, including the speedy trial
claim, because they were not raised in her direct appeal. In denying Ms. Neighbors
habeas relief, the court also noted she had referenced other claims for relief in her initial
habeas petition, but these claims were conclusory, unsupported, and abandoned because
they were not argued in her opening brief.2
Ms. Neighbors subsequently filed a motion asking the district court to reconsider
its denial of her § 2255 petition, asserting that her appellate counsel was ineffective for
failing to raise her speedy trial claims. In addition, she reframed her argument related to
the loss calculation. Rather than argue that her trial counsel was ineffective for failing to
object to the use of gross profit figures for the purposes of calculating loss at sentencing,
Ms. Neighbors claimed her conviction should be vacated because the government failed
to allege and prove net profits as an essential element of money laundering as required by
Santos. Ms. Neighbors also asserted that the government had committed fraud and
tampered with evidence at trial and during the direct appeal. Finally, she claimed that
habeas counsel committed fraud by filing a memorandum of law that was different from
the memorandum she approved. According to Ms. Neighbors, the memorandum she
approved included the claims the district court later deemed abandoned.
The district court considered Ms. Neighbors’s filing as a “mixed motion,” i.e. one
that contained claims under Federal Rule of Civil Procedure 60, as well as second or
2
These claims alleged trial counsel was ineffective for failing to object to the
admission of allegedly false evidence, for failing to challenge the chain of custody of
evidence introduced by the prosecution, and for failing to incorporate an investigator’s
interviews into Ms. Neighbors’s defense.
3
successive habeas claims. See Spitznas v. Boone, 464 F.3d 1213, 1217 (10th Cir. 2006)
(explaining the difference between true Rule 60(b) claims and second or successive
claims). It rejected Ms. Neighbors’s allegations of fraud in the habeas proceeding on the
merits and dismissed the remaining claims, concluding it lacked jurisdiction to consider
them because they were second or successive claims and Ms. Neighbors had not obtained
permission from this court to file them.
Ms. Neighbors filed a notice of appeal of the district court’s order dismissing in
part and denying in part her motion to reconsider, and also filed with this court a
combined opening brief and application for a COA. Specifically, she again argues that
the government failed to allege and prove net profits as a required element of money
laundering and that there was insufficient evidence to support the loss calculation used at
sentencing. She also asserts that the district court should have considered whether there
was a violation of her right to a speedy trial, and realleges her claims that the government
committed fraud on the trial court and that her habeas counsel committed fraud on the
habeas court.3
3
On a related note, Ms. Neighbors filed a motion to compel the government to
supplement the record on appeal by submitting the Grand Jury transcript for the Second
Superseding Indictment in this case. According to Ms. Neighbors, the Grand Jury
transcript reveals that the government purposefully presented the Second Superseding
Indictment when it did to avoid having to prove net, rather than gross, profits because the
indictment was presented two weeks after the Court decided United States v. Santos, 553
U.S. 507, 509 (2008). Ms. Neighbors implies that this tactical decision was fraudulent.
This argument makes little sense, especially since Ms. Neighbors claims the
government filed the Second Superseding Indictment after Santos was issued. In any
event, the Grand Jury transcript is unnecessary to resolve the issues on appeal, and we
therefore deny Ms. Neighbors’s motion to compel.
4
II. ANALYSIS
We first examine Ms. Neighbors’s application for a COA and determine she is not
entitled to a COA to appeal the district court’s denial in part and dismissal in part of her
motion to reconsider. Second, we construe Ms. Neighbors’s combined opening brief and
application for a COA as a request to file a second or successive petition and deny her
permission with respect to her speedy trial claim, the government’s failure to allege or
establish net profits as an essential element of her money laundering conviction, her
challenge to the loss calculation, and her allegations of fraud at trial and on direct appeal.
A. Application for a COA
Ms. Neighbors must obtain a COA to pursue an appeal of the district court’s ruling
on her motion to reconsider. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir.
2008) (holding a federal prisoner must obtain a COA to appeal a district court’s dismissal
of an unauthorized second or successive motion under § 2255 for lack of jurisdiction);
Spitznas, 464 F.3d at 1218 (holding a COA is required to appeal the denial of a Rule
60(b) motion in a habeas case). To obtain a COA, Ms. Neighbors must show both “that
jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Ms. Neighbors has not carried this burden.
With respect to Ms. Neighbors’s claim that habeas counsel committed fraud in the
habeas proceeding, the district court correctly treated this claim as a true Rule 60 claim.
See Spitznas, 464 F.3d at 1216 (holding that a motion asserting fraud or other defect in
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the integrity of the federal habeas proceeding may constitute a true 60(b) motion). Once
the district court construed Ms. Neighbors’s claim as a true Rule 60 claim, it had the
authority to consider and reject it on the merits. See id. at 1217. We review the district
court’s denial of a Rule 60 claim for an abuse of discretion. See Davis v. Kan. Dep’t of
Corr., 507 F.3d 1246, 1248 (10th Cir. 2007); United States v. Buck, 281 F.3d 1336,
1342–43 (10th Cir. 2002).
Here, Ms. Neighbors has not established that reasonable jurists would debate
whether the district court’s decision to deny her Rule 60 claim of fraud by habeas counsel
was an abuse of discretion. As the district court acknowledged, Rule 60(b) permits a
court to relieve a party from a final judgment for “fraud . . . misrepresentation, or
misconduct by an opposing party,” or for “any other reason that justifies relief.” Fed. R.
Civ. P. 60(b)(3), (b)(6). Likewise, Rule 60(d)(3) recognizes a court’s power to “set aside
a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3); Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 246 (1944). The district court correctly rejected Ms.
Neighbors’s claims under Rule 60(b) and (d) in this case. As the court correctly noted,
the plain language of Rule 60(b)(3) requires that the fraud be committed by an opposing
party, and there was nothing to indicate that habeas counsel’s conduct constituted an
“extraordinary circumstance” that would otherwise justify relief under Rule 60(b)(6). See
Fed. R. Civ. P. 60(b)(3) (permitting a court to relieve a party from a final judgment where
there is “fraud . . . by an opposing party”); Davis, 507 F.3d at 1248 (recognizing that
relief “is extraordinary and may only be granted in exceptional circumstances.”); cf.
Klapprott v. United States, 335 U.S. 601, 613 (1949) (concluding that relief was justified
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under Rule 60(b)(6) where the petitioner was deprived of any reasonable opportunity to
defend against the charges).
The district court was also correct that Ms. Neighbors’s allegation that habeas
counsel omitted certain claims from the memorandum of law does not constitute the type
of fraud governed by Rule 60(d)(3). Even assuming habeas counsel’s filing of the
memorandum was fraudulent, it was a fraud perpetrated on Ms. Neighbors, not the
district court. See Buck, 281 F.3d at 1342 (“Fraud on the court . . . is fraud which is
directed to the judicial machinery itself . . . .”); Weese v. Shukman, 98 F.3d 542, 552–53
(10th Cir. 1996) (“[O]nly the most egregious misconduct, such as bribery of a judge or
members of a jury, or the fabrication of evidence by a party in which an attorney is
implicated,” rises to the level of fraud on the court). Therefore, reasonable jurists would
not debate the correctness of the district court’s resolution of Ms. Neighbors’s claims of
fraud in the habeas proceeding and she is not entitled to a COA to appeal the district
court’s decision on this issue.
Likewise, Ms. Neighbors has not established that jurists of reason would debate
that the district court properly dismissed Ms. Neighbors’s claims for ineffective
assistance of counsel, speedy trial violations, the government’s failure to allege or
establish net profits, the sufficiency of the evidence supporting the loss amount, or fraud
on the trial and appellate court. The district court correctly concluded that these claims
are second or successive habeas claims because they all attacked the integrity of Ms.
Neighbors’s underlying conviction and sentence rather than a procedural error in the
habeas proceeding. See United States v. Nelson, 465 F.3d 1145, 1147–49 (10th Cir. 2006)
7
(holding a Rule 60(b) motion is a second or successive § 2255 motion if it challenges the
defendant’s conviction or sentence rather than a procedural error in the previous § 2255
proceeding). As the district court recognized, Ms. Neighbors’s motion to reconsider was
devoted primarily to rearguing the underlying merits of these claims, and to the extent
Ms. Neighbors also alleged government misconduct or fraud during the trial or on direct
appeal, these claims also attack the integrity of the underlying criminal proceeding. See
United States v. Baker, 718 F.3d 1204, 1207 (10th Cir. 2013) (“a motion alleging fraud
on the court in a defendant’s criminal proceeding must be considered a second-or-
successive collateral attack because it asserts or reasserts a challenge to the defendant’s
underlying conviction”). Because the district court correctly construed these claims as
second or successive habeas claims, it was required to dismiss them because it lacked the
jurisdiction to consider them in the absence of certification from this court. See 28 U.S.C.
§ 2255(h) (requiring a second or successive motion to be certified by the appropriate
appellate court before it can be filed in the district court); Nelson, 465 F.3d at 1148 (“if
the prisoner’s pleading must be treated as a second or successive § 2255 motion, the
district court does not even have jurisdiction to deny the relief sought in the pleading”).
For these reasons, Ms. Neighbors is not entitled to a COA to pursue her appeal
challenging the district court’s denial in part and dismissal in part of her motion to
reconsider.
B. Application for Request to File a Second or Successive Petition
Having decided Ms. Neighbors is not entitled to a COA to appeal the district
court’s resolution of her motion to reconsider for lack of jurisdiction, we exercise our
8
discretion to treat her appeal as a petition for permission to file a second or successive
petition. Spitznas, 464 F.3d at 1219 n.8. In particular, we consider whether Ms.
Neighbors should be permitted to pursue the following second or successive claims: (1)
the government violated her right to a speedy trial and her appellate counsel was
ineffective for failing to raise the issue; (2) the government committed fraud on the trial
and appellate court; (3) the government failed to establish net profits as an essential
element of her money laundering conviction, and (4) there was insufficient evidence to
support the loss calculation used at sentencing.
To receive authorization to file a successive application, Ms. Neighbors must
show either
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). Ms. Neighbors has failed to satisfy these requirements.
With respect to her speedy trial and fraud on the trial and appellate court claims,
Ms. Neighbors points to no newly discovered evidence that would establish by clear and
convincing evidence that no reasonable jury would have found her guilty of the crimes
charged, nor has she shown that either claim involves a new rule of constitutional law
made retroactively applicable to her case. Likewise, her loss calculation claim is targeted
at the length of her sentence, not the validity of her conviction, and she has identified no
9
new rule of constitutional law that would retroactively apply here.4 Finally, Ms.
Neighbors’s claim that the government failed to establish net profits as an essential
element of her money laundering conviction does not present grounds to file a second or
successive petition. As with her other claims, Ms. Neighbors directs our attention to no
newly discovered evidence that would establish by clear and convincing evidence that no
reasonable factfinder would have found her guilty of money laundering. And the case to
which she directs our attention, Santos, is not a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme Court. Santos was issued in
2008, prior to Ms. Neighbors’s conviction.
In sum, even considering Ms. Neighbors’s combined opening brief and application
for COA as a request for authorization to file a second or successive petition, we deny
Ms. Neighbors permission to pursue these claims.
III. CONCLUSION
For the foregoing reasons, we deny Ms. Neighbors’s application for a COA. We
also construe Ms. Neighbors’s combined opening brief and application for a COA as a
request to file a second or successive petition, which we deny. We also deny her motion
to compel the government to supplement the record on appeal. But we grant her motion
4
Recall that in her initial § 2255 petition, Ms. Neighbors challenged her loss
calculation on the grounds that it violated Alleyne v. United States, ___ U.S.___, 133 S.
Ct. 2151 (2013), which the Supreme Court decided while Ms. Neighbors’s first habeas
petition was pending. She did not raise this argument in her motion to reconsider, nor
does she cite it in her combined opening brief and application for COA. Even if she had,
it would nevertheless be unavailing because, as the district court recognized, Alleyne does
not apply retroactively. See In re Payne, 733 F.3d 1027, 1029–30 (10th Cir. 2013).
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for leave to proceed on appeal without prepayment of costs and fees. This matter is
dismissed.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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