United States v. Solarin ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 9, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-1090
(D.C. Nos. 1:16-CV-01615-CMA &
FREDERICK OLUWOLE SOLARIN, 1:05-CR-00311-CMA-KMT-1)
(D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.
_________________________________
Defendant Frederick Oluwole Solarin, a federal prisoner proceeding pro se,
seeks a certificate of appealability (COA) from the district court’s order dismissing
certain motions for lack of jurisdiction and its denying another motion on its merits.
We deny a COA and dismiss this appeal.
I. BACKGROUND & PROCEDURAL HISTORY
In June 2005, a number of masked, gun-wielding men robbed a bank in
Aurora, Colorado, taking $26,000 in cash. The FBI soon received a tip that Solarin
may have been one of the robbers.
*
This order is not binding precedent except under the doctrines of law of the case,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.
Solarin was then on parole for a juvenile conviction. Colorado state officials
arrested Solarin, ostensibly on a parole violation, and booked him into jail. FBI
agents then came to the jail and questioned him about the bank robbery. He waived
his Miranda rights and confessed to participating in the robbery and carrying a gun in
the process.
A federal grand jury soon indicted Solarin on one count of armed bank
robbery, including aiding and abetting, in violation of 18 U.S.C. § 2113(a) and (d)
and 18 U.S.C. § 2; and one count of using or carrying a firearm during and in relation
to a crime of violence, including aiding and abetting, in violation of 18 U.S.C.
§ 924(c) and 18 U.S.C. § 2. Solarin pleaded not guilty and went to trial, testifying in
his own behalf that his confession was false and coerced. The jury nonetheless
convicted on both counts. The district court then sentenced him to a combined prison
term of 244 months. He appealed and we affirmed. See United States v. Solarin,
250 F. App’x 887 (10th Cir. 2007).
Soon after our affirmance, Solarin filed a 28 U.S.C. § 2255 motion, claiming
ineffective assistance of counsel for failure to argue that he had been arrested without
probable cause. Specifically, he claimed the Colorado officials who arrested him
never had any suspicion of a parole violation, but were instead acting on the FBI’s
orders to bring him into custody. He further claimed that the FBI did not have
probable cause to arrest him before his custodial confession. Thus, in Solarin’s view,
the FBI had arranged to arrest him before anyone had probable cause to do so, in
violation of the Fourth Amendment.
2
The government responded that “[e]ven if it was because of the federal
investigation [that Colorado officials arrested Solarin], there was no proof that these
State of Colorado folk were acting as mere puppets or handmaidens of the federal
government.” Suppl. R. at 30. In reply, Solarin borrowed this language and insisted
that the Colorado officials were indeed “acting as mere puppets or handmaidens of
the federal government.” Id. at 48 (internal quotation marks omitted).
In its order resolving Solarin’s motion, the district court attributed the
puppets/handmaidens metaphor to Solarin instead of the government. But rather than
analyzing the relationship between the FBI and the Colorado officers who arrested
Solarin, the district court disposed of Solarin’s argument by finding that the FBI had
developed probable cause to arrest him before Colorado officials brought him into
custody. In that light, the district court concluded that counsel’s failure to raise the
Fourth Amendment suppression theory created no prejudice (i.e., Solarin would have
lost the argument anyway), so Solarin’s ineffective-assistance claim lacked merit.
Accordingly, the district court denied Solarin’s § 2255 motion. We denied a COA.
See United States v. Solarin, 383 F. App’x 772 (10th Cir. 2010).
Solarin has since made multiple further attempts to collaterally attack his
conviction. For present purposes, two challenges filed in 2016 are most relevant.
First, in March 2016, Solarin filed a pro se motion with the district court
captioned “Motion for Relief from Judgment Pursuant to Rule 60(d)(1) & (3),
Federal Rules of Civil Procedure[,] with Contemporaneous Request to Expand the
Record Under Rule 7 of the Rules Governing Section 2255” (“Rule 60(d) motion”).
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R. at 243 (capitalization normalized).1 Solarin argued that the government had
committed fraud on the court in 2008 when it “injected the words ‘handmaidens’ or
‘puppets’ into the language of [its response to Solarin’s first § 2255 motion].” Id. at
251. “[T]hat improper and misleading language was attributed to Solarin when it was
created from whole cloth by the government to specifically direct the Court’s
attention away from the merits of Solarin[’]s claims, his evidence, and supporting
transcripts on the docket and in the government’s possession.” Id. at 252. Thus, in
his view, his first § 2255 motion “was not adjudicated but determined by deception.”
Id. at 253. As for his request to expand the record, Solarin attached several
documents, including a May 2014 declaration from a co-defendant asserting that
Solarin had not participated in the bank robbery.
Second, in June 2016, Solarin filed a counseled § 2255 motion attacking his
§ 924(c) conviction in the wake of the Supreme Court’s holding in Johnson v. United
States, 576 U.S. 591, 606 (2015), that the Armed Career Criminal Act’s residual
clause is unconstitutionally vague. Solarin asserted that he had been convicted under
§ 924(c)’s similarly worded residual clause, so his conviction was likewise
unconstitutional.
1
The cited portions of Rule 60(d) state that “[t]his rule [i.e., Federal Rule of Civil
Procedure 60] does not limit a court’s power to . . . (1) entertain an independent action to
relieve a party from a judgment, order, or proceeding; . . . or (3) set aside a judgment for
fraud on the court.” Solarin’s citation to Rule 7 of the Rules Governing § 2255
Proceedings presumably refers to Rule 7(a), which says, “If the motion is not dismissed,
the judge may direct the parties to expand the record by submitting additional materials
relating to the motion.”
4
Solarin’s Johnson-based § 2255 motion was “second or successive” and this
court had not granted him permission to file it at the time he presented it to the
district court. See 28 U.S.C. § 2255(h). But he had a motion for authorization
(MFA) pending in this court and he feared that the limitations period for successive
§ 2255 claims based on Johnson might run before this court issued its decision. He
therefore filed the motion in the district court and moved to stay those proceedings
until this court decided his MFA. The district court granted the stay, which
apparently applied to both the § 2255 motion and the Rule 60(d) motion.
Meanwhile, this court abated Solarin’s MFA. When the Supreme Court held
in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), that § 924(c)’s residual
clause is unconstitutionally vague, we lifted the abatement and granted the MFA.
The district court in turn lifted its stay and called for further briefing on the § 2255
motion in light of Davis.
Solarin soon filed a series of new motions with titles such as “Motion To
Supplement Defendant’s Section 2255 and Response,” R. at 426, and “Emergency
Motion For Summary Judgment,” R. at 460. We will refer to these as the
“post-abatement motions.” They variously asserted that the district court improperly
instructed the jury on the elements of aiding and abetting a § 924(c) violation, that it
improperly calculated his sentencing guidelines range, and that Solarin was actually
innocent (pointing again to the declaration from his co-defendant asserting he did not
participate in the robbery).
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The district court disposed of all pending motions in a single order. As to the
Rule 60(d) motion, the court noted our statement in an unpublished disposition that
“[n]o such thing as a Rule 60(d)(1) motion actually exists.” McIntosh v. Pruitt,
832 F. App’x 540, 542 n.1 (10th Cir. 2020). Construing the motion as one under
Rule 60(b) instead, the court held it was effectively an unauthorized successive
§ 2255 motion over which it had no jurisdiction. It therefore denied the motion on
that basis. It likewise held that the post-abatement motions were unauthorized
successive § 2255 motions and dismissed them for lack of jurisdiction. Finally, it
denied the authorized § 2255 motion on its merits, pointing to recent decisions from
this court establishing that aiding and abetting bank robbery falls within § 924(c)’s
elements clause, so the unconstitutionality of the residual clause is immaterial.
Solarin timely filed a notice of appeal and moved for a COA from this court.
II. LEGAL STANDARD
This appeal may not proceed unless we grant a COA, see 28 U.S.C.
§ 2253(c)(1)(B), and we may not grant a COA unless Solarin “ma[kes] a substantial
showing of the denial of a constitutional right,” id. § 2253(c)(2). This means he
“must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). And he must make an extra showing for his Rule 60(d) and
post-abatement motions because the district court dismissed them on procedural
grounds, namely, lack of jurisdiction. So he must also show that “jurists of reason
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would find it debatable whether the district court was correct in its procedural
ruling.” Id.III. ANALYSIS
We will first address the Rule 60(d) motion, then the post-abatement motions,
and conclude with the authorized successive § 2255 motion.
A. Rule 60(d) Motion
If Solarin’s Rule 60(d) motion is, in substance, an attack on his conviction, it
is “subject to the authorization requirements of § 2255(h).” United States v. Baker,
718 F.3d 1204, 1206 (10th Cir. 2013). But “if the motion seeks to correct an error in
the previously conducted § 2255 proceeding itself, it is not characterized as a
successive motion,” and does not need our authorization. Id. (internal quotation
marks and brackets omitted). “[W]e look at the relief sought, rather than a pleading’s
title or its form, to determine whether it is a second-or-successive collateral attack on
a defendant’s conviction.” Id. at 1208.2
We have examined Solarin’s Rule 60(d) motion and we find that, in substance,
it attacks his conviction, rather than raising a genuine defect in prior § 2255
proceedings. Solarin complains about the puppets/handmaidens metaphor being
attributed to him instead of the government, but it was in no sense fraud on the court
in the § 2255 proceedings, for at least two reasons. First, it resulted from the district
2
For this reason, Solarin’s argument that the district court improperly
recharacterized his Rule 60(d) motion as a Rule 60(b) motion is immaterial. The
question is the motion’s substance, not its caption or the authority under which Solarin
purportedly brought it.
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court’s misunderstanding of which party proposed the metaphor, not from intent to
deceive. Cf. Thomas v. Parker, 609 F.3d 1114, 1120 (10th Cir. 2010) (describing the
high bar for establishing fraud on the court). Second, the misunderstanding was
irrelevant because the district court avoided the question of whether Colorado
officials were acting solely on the FBI’s behalf and went directly to the question of
whether the FBI had probable cause to arrest Solarin (or, in this case, to ask another
agency to arrest him). See Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985)
(holding that police officers may make an arrest based on probable cause developed
by other officers).
The basic purpose of Solarin’s Rule 60(d) motion is to continue asserting his
belief that his arrest violated the Fourth Amendment. This is further illustrated by
the documents he attaches (presumably the documents he wishes to make part of the
record through Rule 7 of the Rules Governing § 2255 Proceedings). These
documents largely relate to his Fourth Amendment claim, or to a simple assertion of
innocence.
In short, the Rule 60(d) motion is, in substance, an unauthorized second or
successive § 2255 motion. See Baker, 718 F.3d at 1208 (refusing to exempt a motion
nominally filed under Rule 60(d)(3) from § 2255(h)’s authorization procedure). The
district court correctly dismissed it for lack of jurisdiction. Jurists of reason could
not conclude otherwise, so we may not grant a COA as to that dismissal.
8
B. Post-Abatement Motions
The analysis as to the post-abatement motions is essentially the same. The
district court accurately identified them as raising new collateral attacks on Solarin’s
conviction—ones which this court had not authorized him to pursue. So, again, the
district court correctly dismissed those motions for lack of jurisdiction, and jurists of
reason could not conclude otherwise. Accordingly, we may not grant a COA as to
those dismissals.
C. Authorized Successive § 2255 Motion
We authorized Solarin to file a successive § 2255 motion arguing that he had
been convicted under § 924(c)’s residual clause, which the Supreme Court
invalidated in Davis. Addressing that argument on the merits, the district court held
that Solarin’s crime falls under § 924(c)’s elements clause, and so denied relief.
We need not examine the district court’s reasoning because Solarin does not
challenge it. To be sure, he says “he can make a substantial showing of the denial of
a constitutional right” as to “the district court’s denial of [his authorized § 2255
motion].” Aplt. Combined Opening Br. and Appl. for Certificate of Appealability
at 25. But he goes on to continue asserting fraud on the court, actual innocence, and
a Fourth Amendment violation, never mentioning the district court’s conclusion that
he was convicted under § 924(c)’s elements clause.
“[P]erfunctory complaints fail to frame and develop an issue sufficient to
invoke appellate review.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.
1994). Necessarily, then, Solarin has not “made a substantial showing of the denial
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of a constitutional right” on this issue, 28 U.S.C. § 2253(c)(2), so we must deny a
COA.
IV. CONCLUSION
As to all issues before us, we deny Solarin’s application for a COA and we
dismiss this appeal. We grant his motion to proceed without prepayment of costs or
fees.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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