United States v. Margheim ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 30, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1429
(D.C. Nos. 1:15-CV-00481-DME and
TERRY MARGHEIM, 1:10-CR-00326-PAB-17)
(D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
After the district court denied Terry Margheim’s 28 U.S.C. § 2255 motion,
Margheim filed a motion for relief from judgment. See Fed. R. Civ. P. 60(b). The district
court denied Margheim’s motion, and Margheim now seeks a certificate of appealability
(COA) so he can appeal the district court’s decision.1 See Spitznas v. Boone, 464 F.3d
1213, 1217–18 (10th Cir. 2006) (explaining that we require movant to obtain COA to
appeal order denying Rule 60(b) motion in habeas case). Because reasonable jurists
wouldn’t find the district court’s decision debatable or wrong, we deny Margheim’s
*
This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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Because Margheim proceeds pro se, we liberally construe his pleadings. But
we won’t act as his advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
request for a COA and dismiss this matter. See Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Background
In relevant part, Margheim advanced two claims in his § 2255 motion. First, he
argued that counsel was ineffective in “failing to properly research and argue” an
allegedly meritorious speedy-trial issue. R. vol. 1, 54. Second, he argued that counsel was
likewise ineffective in “fail[ing] to research and litigate proper application of” the United
States Sentencing Guidelines. Id. at 56.
The district court rejected both claims. First, it pointed out that (1) Margheim
raised a speedy-trial argument on direct appeal; (2) this court rejected that argument; and
(3) Margheim couldn’t “use [a] § 2255 proceeding to challenge the propriety of” this
court’s “decision to deny him relief on direct appeal.” Id. at 86; see also United States v.
Margheim, 770 F.3d 1312, 1331 (10th Cir. 2014) (“Margheim was not deprived of his
statutory or Sixth Amendment right to a speedy trial.”); United States v. Prichard, 875
F.2d 789, 791 (10th Cir. 1989) (“Absent an intervening change in the law of a circuit,
issues disposed of on direct appeal generally will not be considered on a collateral attack
by a motion pursuant to § 2255.”). Moreover, to the extent Margheim was instead
asserting that “counsel should have raised better, more persuasive speedy-trial
arguments,” the district court reasoned that Margheim wasn’t “entitled to § 2255 relief
because his new speedy-trial grounds for relief lack[ed] merit,” and thus Margheim failed
to demonstrate he was prejudiced by counsel’s failure to raise those arguments. R. vol. 1,
87; see also Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (explaining that
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defendant advancing ineffective-assistance claim must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different”).
Next, the district court ruled that counsel wasn’t ineffective in failing to argue that
Margheim’s 1990 Colorado conviction was “too stale to warrant any criminal history
points.” R. vol. 1, 88. In reaching that conclusion, the district court acknowledged that a
state court initially sentenced Margheim for the 1990 Colorado offense more than 15
years before Margheim committed the underlying federal crimes. But the district court
pointed out that as the result of an intervening parole violation, Margheim was
nevertheless incarcerated for the 1990 offense until August 1994—a date that fell within
15 years of the date on which he committed the first of his underlying federal offenses.
Thus, the district court reasoned, the sentencing court “correctly attributed three criminal
history points to that [1990] state conviction.” Id.; see also U.S.S.G. § 4A1.1(a) (adding
three points “for each prior sentence of imprisonment exceeding one year and one
month”; id. § 4A1.2(e)(1) (noting that “[a]ny prior sentence of imprisonment exceeding
one year and one month that was imposed within fifteen years of the defendant’s
commencement of the instant offense is counted” and that court must “[a]lso count any
prior sentence of imprisonment exceeding one year and one month, whenever imposed,
that resulted in the defendant being incarcerated during any part of such fifteen-year
period.”); id. § 4A1.2(k)(2) (“Revocation of probation, parole, supervised release, special
parole, or mandatory release may affect the time period under which certain sentences are
counted . . . .”). And because “Margheim’s challenge[] to the calculation of his criminal
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history lack[ed] merit,” the district court reasoned, counsel wasn’t “ineffective for failing
to raise” that challenge. R. vol. 1, 87–88.
After the district court denied Margheim’s § 2255 motion, Margheim asked this
court for a COA to appeal the district court’s order. This court denied Margheim’s
request, concluding that because Margheim’s underlying speedy-trial and criminal-
history arguments failed, Margheim’s claims that counsel was ineffective in failing to
raise those arguments necessarily failed as well. Thus, this court reasoned, reasonable
jurists wouldn’t debate the district court’s assessment of Margheim’s ineffective-
assistance claims. See Slack, 529 U.S. at 484.
Margheim then filed the instant Rule 60(b) motion, in which he argued that the
district court erred in failing to fully resolve the merits of his § 2255 claims. The district
court denied the motion, reiterating the original reasons it gave for denying Margheim’s
§ 2255 motion: (1) Margheim couldn’t use § 2255 to relitigate any speedy-trial
arguments that this court rejected in his direct appeal; (2) to the extent that Margheim
instead argued that counsel was ineffective in failing to adequately present his speedy-
trial arguments, Margheim couldn’t satisfy Strickland’s two-part test; and (3) because
Margheim failed to demonstrate that his criminal-history argument entitled him to relief,
he necessarily failed to demonstrate that counsel was ineffective in failing to raise that
argument.
Analysis
The district court denied Margheim’s motion without expressly addressing
whether it constituted a true Rule 60(b) motion or a second or successive § 2255 motion.
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“Our first task, therefore, is to consider each of the issues raised in the motion in order to
determine whether it represents a second or successive petition, a ‘true’ Rule 60(b)
motion, or a mixed motion.” Spitznas, 464 F.3d at 1224.
Because Margheim’s motion argued that the district court erred in failing to
address the merits of each of his § 2255 claims, we treat that motion as “a ‘true’ Rule
60(b) motion.” Id.; see also id. at 1225 (“[Defendant’s] contention that the district court
failed to consider one of his habeas claims represents a ‘true’ 60(b) claim. It asserts a
defect in the integrity of the federal habeas proceedings.”); United States v. Solarin, 437
F. App’x 700, 703 (10th Cir. 2011) (unpublished) (treating as true Rule 60(b) argument
defendant’s assertion that district court failed to rule on his ineffective-assistance claim).
Thus, before Margheim can appeal the district court’s order denying his motion, he needs
a COA. See Spitznas, 464 F.3d at 1217–18. And to obtain a COA, Margheim must show
that (1) “jurists of reason would find it debatable whether” he has “state[d] a valid claim
of the denial of a constitutional right” and (2) “ jurists of reason would find it debatable
whether the district court was correct in its procedural ruling[s].” Slack, 529 U.S. at 484;
see also Spitznas, 464 F.3d at 1225 (applying Slack standard to determine whether
defendant was entitled to COA to appeal denial of true Rule 60(b) claim).
In his combined opening brief and request for a COA, Margheim asserts that the
district court failed to fully “address[] [his] legal arguments” in support of his claims that
counsel was ineffective in failing to adequately research and present (1) his speedy-trial
argument and (2) his criminal-history argument. Aplt. Br. 3. But in denying Margheim’s
request for a COA to appeal the district court’s denial of his § 2255 motion, a panel of
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this court has already determined that Margheim suffered no prejudice as a result of
counsel’s allegedly deficient performance. That is, a panel of this court has already
concluded that “jurists of reason would [not] find it debatable whether” Margheim has
“state[d] a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 484. And
we decline to revisit that decision. See United States v. Trent, 884 F.3d 985, 994 (10th
Cir. 2018) (explaining that under law-of-the-case doctrine, “when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages
in the same case” (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir.
1991))). Accordingly, we deny Margheim’s request for a COA and dismiss this matter.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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