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United States v. Harris

United States Court of Appeals, Tenth Circuit

September 12, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
STANLEY REMOND HARRIS, a/k/a Stanley Remond Harris, Jr., Defendant-Appellant.

(D.C. No. 5:08-CR-00094-M-1) (W.D. Okla.)

Before KELLY, HOLMES, and MATHESON, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY [*]

JEROME A. HOLMES Circuit Judge

Stanley Remond Harris, a federal prisoner proceeding pro se, [1] seeks a certificate of appealability ("COA") so he can appeal from the district court's denial of his Federal Rule of Civil Procedure 60(b) motion. He additionally seeks leave to proceed in forma pauperis ("IFP") on appeal. For the reasons stated below, we DENY Mr. Harris's application for a COA, DENY his request to proceed IFP, and DISMISS this matter.

I

Mr. Harris pleaded guilty in November 2008 to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). He did so without the benefit of a written plea agreement. The district court sentenced Mr. Harris to 120 months' incarceration to be followed by three years' supervised release and imposed a $14, 000 fine. In a motion pursuant to 28 U.S.C. § 2255, Mr. Harris sought to have his sentence vacated, alleging ineffective assistance of counsel. The district court denied the motion, and we in turn denied Mr. Harris's request for a COA to appeal that decision. See United States v. Harris, 404 F.App'x 264, 265 (10th Cir. 2010).

In March 2012, Mr. Harris filed a "Motion for 60(b) Relief on Unresolved Claims Alleged in § 2255 Motion" in the district court. R., Vol. I, at 101 (Mot. for 60(b) Relief, filed Mar. 26, 2012) (capitalization altered). In this motion, Mr. Harris alleged a "fundamental defect" in his prior § 2255 proceeding—namely:

The Court failed to rule on [Mr. Harris's] Claim that counsel rendered ineffective assistance of counsel by materially misinforming [Mr. Harris] regarding the consequences of the plea, as it related to the use of the suppressed evidence to enhance his sentence . . . .

Id. (internal quotation marks omitted). The district court found that the motion "present[ed] a 'true' Rule 60(b) claim, " rather than a second or successive habeas petition, but nevertheless denied relief. Id. at 128 (Order, filed Mar. 14, 2013). Noting that district courts are not required to address issues that a § 2255 motion does not "adequately present . . . such that they require[] consideration, " id. at 129 (quoting United States v. Duran, 454 F.App'x 671, 678 (10th Cir. 2012)), the court found that:

[The] defendant did not adequately develop any argument regarding a claim that his counsel rendered ineffective assistance of counsel by misinforming him regarding the consequences of his plea as it related to the use of the suppressed evidence to enhance his sentence. Nowhere in the body of defendant's motion, brief in support, or reply does defendant mention, let alone discuss, any claim that his counsel provided ineffective assistance of counsel by misinforming him regarding the consequences of his plea as it related to the use of suppressed evidence to enhance his sentence. The only place that such a claim is mentioned is in paragraph 11 of his Affidavit which was attached to his brief in support.

Id. The district court thus denied Mr. Harris's Rule 60(b) motion. In a separate order, the court also denied his request for a COA. Mr. Harris now seeks a COA from this court to appeal from the district court's decision.

II

Mr. Harris's application to this court advances a single argument: that his Rule 60(b) pleading and affidavit in fact "did state his claim properly when the affidavits and the pleadings are taken as a whole, " and that in finding otherwise, the district court erred by failing to give his pro se filings a sufficiently liberal construction. Appl. for COA at 6. For the reasons set forth below, we conclude that this argument is without merit. And, because reasonable jurists could not ...


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