United States v. Solarin , 383 F. App'x 772 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
June 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-1575
v. (D. Colorado)
FREDERICK OLUWOLE SOLARIN, (D.C. Nos. 1:07-CV-02656-CMA and
JR., 1:05-CR-00311-CMA-1)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Frederick Oluwole Solarin, appearing pro se, requests a certificate of
appealability (COA) to appeal the district court’s denial of his motion for relief
under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal
dismissal of § 2255 motion). Because no reasonable jurist could conclude that
Mr. Solarin’s § 2255 motion should have been resolved in a different manner, see
Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny his request for a COA and
dismiss this appeal.
Mr. Solarin was convicted in the United States District Court for the
District of Colorado of armed bank robbery, see 18 U.S.C. § 2113, and using or
carrying a firearm during and in relation to a crime of violence, see id. § 924(c).
He was sentenced to 244 months’ imprisonment and unsuccessfully appealed the
sentence. See United States v. Solarin, 250 Fed. App’x 887 (10th Cir. 2007)
(unpublished).
The underlying facts are set forth in our Order and Judgment on
Mr. Solarin’s prior appeal and need not be repeated. The critical fact underlying
Mr. Solarin’s present claim is that when he was being investigated as a suspect in
the bank robbery, he was initially arrested on a charge of violating the conditions
of his parole on a state conviction. Only after FBI agents interviewed him while
he was in state custody (and he confessed) did federal authorities charge him with
the robbery and obtain his transfer to federal custody.
On December 20, 2007, Mr. Solarin filed a § 2255 motion raising the
following claims: First, he contended that although his arrest was ostensibly for a
parole violation, it was really a federal arrest for robbery, and that therefore
probable cause was required to arrest him and he had to be arraigned promptly
before a federal judge. Because the federal agents lacked probable cause and
because he was not promptly arraigned, his confession while in state custody was
the fruit of illegality and must be suppressed. Second, he contended that his
confession was involuntary because the FBI agents who interviewed him
psychologically coerced him by pointing out the seriousness of his situation.
Third, he contended that his trial counsel was ineffective in the manner that she
challenged his confession and in advising him not to testify at the suppression
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hearing. Mr. Solarin also contended that his claims were not procedurally barred
by his failure to raise them on direct appeal, because that failure was the result of
ineffective assistance of his appellate counsel.
The magistrate judge issued a recommendation that Mr. Solarin’s § 2255
motion be dismissed. After the magistrate judge issued her recommendation,
Mr. Solarin filed a motion to amend his § 2255 motion by adding correspondence
with his attorneys and documents from his state proceedings. The district court
denied the motion on the ground that it was “untimely and unnecessary, given the
record before it.” R. at 204. On November 3, 2009, the district court adopted the
magistrate judge’s recommendation over Mr Solarin’s objections. It also denied
Mr. Solarin a COA.
In this court Mr. Solarin repeats the claims made in his § 2255 motion. He
also objects to the district court’s denial of his motion to amend his § 2255
motion.
“A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the
merits,” the prisoner “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484. If the motion was denied on procedural grounds, the
applicant faces a double hurdle. Not only must the applicant make a substantial
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showing of the denial of a constitutional right, but he must also show “that jurists
of reason would find it debatable . . . whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the [motion] or that the
[movant] should be allowed to proceed further.” Id.Mr. Solarin’s claims lack merit for essentially the reasons set forth in the
magistrate judge’s recommendation and the district court’s opinion. He has failed
to show any impropriety in the state arrest of Mr. Solarin for violating his parole.
When a possible bank robber is at large, there is nothing wrong with law-
enforcement agencies cooperating and using the simplest means to take him into
custody. See United States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969)
(“Active cooperation between state and federal authorities in the enforcement of
criminal laws . . . should be encouraged.”). And Mr. Solarin’s claim that his
confession was involuntary likewise lacks merit. Internal pressures felt by a
Mirandized suspect do not constitute coercion. See Colorado v. Connelly, 479
U.S. 157, 167 (1986).
Because Mr. Solarin’s challenges to his arrest and confession fail on the
merits, he was not prejudiced by any inadequacy of his appellate counsel. See
Cannon v. Mullin, 383 F.3d 1152, 1177 (10th Cir. 2004) (counsel cannot be
ineffective for failing to pursue meritless claims). And as for his claim of
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ineffective assistance of trial counsel, he has likewise failed to present any
assertion, much less evidence, of how he was prejudiced. In particular, although
he complains that his counsel advised him not to testify at the suppression
hearing, he has not set forth any specifics regarding what he would have testified
to. See United States v. Meacham, 567 F.3d 1184, 1188 (10th Cir. 2009).
Finally, we see no merit to Mr. Solarin’s claim that the district court erred
in not permitting him to submit additional documents in the form of an amended
complaint. The court said that the materials were “unnecessary, given the record
before it.” R. at 204. We agree that they contained nothing material.
Thus, no reasonable jurist could debate that the issues should have been
resolved differently by the district court.
Accordingly, we DENY a COA and DISMISS the appeal. We DENY
Mr. Solarin’s January 19, 2010, Motion for Judicial Notice and February 8, 2010,
Motion to Enlarge Record.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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