U.S. v. Pinson

• Decision Date: 26 October 2009
• Docket Number: No. 09-6119.,09-6119.
• Citation: 584 F.3d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeremy PINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

584 F.3d 972

UNITED STATES of America, Plaintiff-Appellee, v. Jeremy PINSON, Defendant-Appellant.

No. 09-6119.

United States Court of Appeals, Tenth Circuit.

October 26, 2009.

James F. Robinson, Esq., Randal A. Sengel, Esq., United States Attorney's Office, Oklahoma City, OK, for Plaintiff-Appellee.

Jeremy Vaughn Pinson, Talladega, AL, pro se.

Before HARTZ, EBEL and O'BRIEN, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY

DAVID M. EBEL, Circuit Judge.

Defendant-Appellant Jeremy Vaughan Pinson, a federal prisoner appearing pro se, moved the district court to vacate his sentence under 28 U.S.C. § 2255. Pinson raised nine challenges to his guilty plea, conviction, and sentence; the district court denied his motion and his request for a Certificate of Appealability (COA). He presses four issues in seeking a COA from this court: (1) that he was incompetent at the time of his guilty plea; (2) that the court order restricting his correspondence during his original district court proceedings violated his First and Sixth Amendment rights; (3) that the district court erred in denying him leave to amend his § 2255 motion; and (4) that the district court violated his Sixth Amendment rights by ordering his original trial counsel to file an affidavit in support of the government in his § 2255 proceeding. We DENY Pinson's request for a COA in full, and DISMISS the appeal.

I. Background

On March 16, 2007, Pinson pleaded guilty to one count of making a false statement to a United States Marshal in violation of 18 U.S.C. § 1001(a)(2) and one count of threatening a juror in violation of 18 U.S.C. § 876(c), both committed while he was on trial for an unrelated charge. In his plea agreement, Pinson waived his right to "[a]ppeal or collaterally challenge his guilty plea, sentence and restitution imposed, and any other aspect of his conviction, including but not limited to any rulings on pretrial suppression motions or any other pretrial dispositions of motions and issues." (R. vol. 1 at 58.) The agreement specifically preserved his right to appeal "a sentence above the advisory sentencing guideline range determined by the Court to apply to [the] case." (Id.) Pinson was sentenced to 180 months, to run consecutively with a sixty-month sentence imposed the same day in his underlying criminal case. As both his total sentence and the sentence imposed for his § 1001(a)(2) and § 876(c) violations exceeded the top end of the guidelines range, he appealed to this court, which held the sentence both procedurally and substantively reasonable in all respects. See United States v. Pinson, 542 F.3d 822, 839 (10th Cir.2008). On February 5, 2009, Pinson filed a motion to vacate his sentence under 28 U.S.C. § 2255 claiming nine constitutional defects in his conviction. In the district court, the United States sought enforcement of Pinson's appeal waiver, and the district court denied the § 2255 motion. Pinson now asks this court for a COA permitting him to appeal from that decision.

II. Discussion

In order to obtain a COA, Pinson must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Such a showing is made only where a prisoner demonstrates "that jurists of reason would find it debatable" that a constitutional violation occurred, and that the district court erred in its resolution. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where a criminal defendant attempts to appeal an issue that the government claims has been waived in a plea agreement, the courts of this circuit conduct a three-step test to determine whether the issue may be appealed. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc). This analysis considers: (1) whether the issue appealed or challenged falls within the scope of the text of the waiver; (2) whether the waiver was knowingly and voluntarily entered into; and (3) whether enforcing the waiver would result in a miscarriage of justice. Id. Finally, because Pinson appears pro se, we must construe his arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Two of Pinson's claims of error go to his original convictions; the other two address the actions of the district court in his § 2255 proceedings.

A. Incompetency at the Time of the Plea

In his first claim of error challenging his convictions, Pinson asserts that he was mentally incompetent at the time of his guilty plea, and that the judge failed to adequately ascertain that Pinson's plea was knowing and intelligent. Because Pinson phrased this claim to the district court in terms of ineffective assistance of counsel with respect to his competency, rather than directly claiming that he was incompetent and thus that his plea was invalid, the district court held the claim barred by his appeal waiver. Given the liberal construction we are bound to give the filings of pro se applicants, however, we cannot embrace the district court's reasoning on this issue. Liberally construed, Pinson's competency claim goes to the validity of the plea agreement itself—including the appeal waiver provision—and so the appeal waiver cannot preclude the claim. See Hahn, 359 F.3d at 1325.

But, as the district court noted, in accepting Pinson's guilty plea, the court had ample evidence before it both of Pinson's history of emotional problems and his competency as of the date of the hearing. Both prior to accepting the guilty plea and as part of the presentence investigation, Pinson's competency was thoroughly tested during his original proceedings. At Pinson's plea colloquy, the following exchange occurred between the judge, the defendant, and the defendant's counsel:

THE COURT: Have you ever been confined in an institution for the treatment of mental illness or ever been found mentally incompetent or mentally ill?

DEFENDANT PINSON: Yes, Your Honor.

THE COURT: Have you actually been found mentally incompetent or mentally ill—

DEFENDANT PINSON: Not mentally incompetent, but suffering from depression and other maladies, but not actually incompetent or anything of that matter.

THE COURT: Are you satisfied you understood what you were doing at the time of these alleged offenses?

DEFENDANT PINSON: I knew exactly what I was doing, [Y]our Honor.

THE COURT: And are you satisfied you understand what's going on today?

DEFENDANT PINSON: I understand everything that's going on, sir.

THE COURT: Do you have any doubt about that, Mr. Wells?

MR. WELLS: No. As a matter of fact, on the record, I would inform the Court that I have—the Court authorized me to hire a psychologist to help in this case. He has reviewed the records. He has also talked with Mr. Pinson over at the county jail and I do anticipate using him at the time of sentencing for mitigation purposes, but he informed me that it is also his opinion that Mr. Pinson is very competent, that he does have definite issues, but that he is competent to understand what he was doing.

(R. vol. 1 at 61-62.) Based upon this exchange and the evidence before the court both at the time of the plea and before sentencing, we cannot say that the original court had any reason to believe that Pinson was not competent to plead guilty and waive his right to appeal. In his § 2255 petition, Pinson adduced no competent evidence that would lead us to question this conclusion. Pinson has thus failed to carry his burden of making out a "substantial showing" of the denial of his right to due process, and we thus decline to grant a COA on this issue.

B. Restriction on Correspondence

Pinson next argues that an order requiring all his correspondence go through his counsel during his original trial violated his First and Sixth Amendment rights. Because this claim addresses an "aspect of his conviction" involving a "pretrial disposition[]," it falls within the scope of the appeal waiver. Because he does not challenge the knowing and voluntary character of the waiver with respect to this argument, and because we have held that the judge had no reason to question his competency at the time of the plea, we apply the language of the plea agreement and find this issue waived. See Hahn, 359 F.3d at 1325.

C. Denial of Leave to Amend Motion

In his § 2255 proceeding, Pinson sought leave of the district court to amend his petition "to expand the basis for claims already raised by alleging additional facts and supporting exhibits which support the defendant's claims." (R., vol. 1 at 45.) The district court denied this motion, due to the scope of Pinson's appeal waiver and lack of merit in his ineffective assistance of counsel claims.

We review the district court's decision to deny Pinson leave to amend his petition for abuse of discretion. Stafford v. Saffle, 34 F.3d 1557, 1560 (10th Cir. 1994). Under Federal Rule of Civil Procedure 15(a), a district court may deny leave to amend pleadings due to, among other reasons, "futility of the amendment." Stafford, 34 F.3d at 1560 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Here, because Pinson's proposed amendment would only have added further factual support for claims that the district court had already found legally flawed, we cannot say that the district court abused its discretion in denying Pinson leave to amend.

D. Attorney-Client Privilege Sixth Amendment Claim

In his § 2255 proceeding before the district court, four of Pinson's claimed nine errors were premised upon ineffective assistance of counsel. The United States sought an affidavit from Pinson's original attorney to rebut Pinson's claims; when the attorney refused, the government moved the court for an order compelling the attorney's production of an affidavit, which the court granted. Pinson argues that by requiring his attorney to violate attorney-client privilege, this order violated his Sixth...