United States v. Beasley

• Decision Date: 14 July 2020
• Docket Number: No. 20-3019,20-3019
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD BEASLEY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD BEASLEY, Defendant - Appellant.

No. 20-3019

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

July 14, 2020

(D.C. Nos. 6:18-CV-01149-JTM & 6:13-CR-10112-JTM-1)

(D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY^*

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

Proceeding pro se,¹ Gerald Beasley seeks a Certificate of Appealability (COA) to challenge the district court's denial of his 28 U.S.C. § 2255 habeas petition. He argues that, by not challenging the facial validity of the government's wiretap orders, his trial counsel provided ineffective assistance of counsel. Because such a Fourth Amendment challenge would have been meritless, Beasley has not made a substantial showing of a denial of his Sixth Amendment right to effective assistance of counsel. Accordingly, we deny a COA and dismiss this case.

BACKGROUND

On April 1, 2014, a federal grand jury seated in the District of Kansas indicted Gerald Beasley (Beasley), his sons, Antoine Beasley (Antoine Beasley) and Gerald Wilson (Wilson), and nine other defendants in a thirty-four count Second Superseding Indictment. The Indictment charged Beasley with the following crimes:

• Possession of a firearm by a convicted felon (Counts 1, 3, 9), in violation of 18 U.S.C. § 922(g);

• Possession of a firearm in furtherance of a drug-trafficking crime (Counts 2, 4, 10), in violation of 18 U.S.C. § 924(c);

• Maintaining a drug-involved premises (Counts 5, 11, 14), in violation of 21 U.S.C. § 856;

• Possessing heroin, cocaine, and cocaine base with intent to distribute (Counts 6, 7, 8), in violation of 21 U.S.C. § 841;

• Conspiring to distribute and to possess with intent to distribute cocaine, cocaine base, heroin, and marijuana (Counts 15, 16, 17, and 18), in violation of 21 U.S.C. § 846;

• Conspiring to commit bank fraud (Count 19), in violation of 18 U.S.C. §§ 1344, 1349;

• Committing bank fraud (Counts 20, 21, 22, 23, and 24), in violation of 18 U.S.C. § 1344(2);

• Conspiring to commit program fraud (Count 25), in violation of 18 U.S.C. § 371;

• Money laundering, in violation of 18 U.S.C. § 1956 (Counts 26 and 27); and

• Conspiring to commit money laundering (Count 28), in violation of 18 U.S.C. § 1956(h).

The Indictment was the product of an extensive investigation by numerous federal agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, into the Beasley family's criminal activity. The most productive facet of that investigation involved two wiretaps, one for Beasley's cell phone (Target Telephone # 1, number 316-409-4289) and one for Antoine Beasley's cell phone (Target Telephone # 2, number 316-992-9165). As Beasley admits, the wiretaps produced a "mountain of evidence[.]" R. vol. 2 at 305.

Both Beasleys moved to suppress evidence obtained from the wiretaps, arguing (among other things) that they were issued without probable cause and in contravention of 18 U.S.C. § 2518(1)(c)'s necessity requirement.² The court denied the suppression motions.

Having suffered a significant setback, Beasley decided it was best to cut his losses. So on August 7, 2017, Beasley signed a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). In return for the government's promise to dismiss Counts 1, 3 through 6, 8 through 11, and 14 through 28, Beasley agreed to plead guilty to Count 2 (possession of a firearm in furtherance of a drug-trafficking crime) and Count 7 (possession of cocaine with the intent to distribute). As a factual basis for the plea, Beasley admitted that he had distributed cocaine from his Kansas residence and from a restaurant that he owned, "that he possessed [a] Derringer handgun . . . to protect himself, his product, and his money while he distributed cocaine," and "that he obtained significant financial gain as a direct result of his illegal drug distribution[.]" R. vol. 2 at 253-54. Beasley's plea agreement contained this waiver provision:

The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, his conviction, or the components of the sentence to be imposed herein, including the length and conditions of supervised release, as well as anysentence imposed upon a revocation of supervised release. . . . The defendant also waives any right to challenge his sentence, or the manner in which it was determined, or otherwise attempt to modify or change his sentence, in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255 (except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)), or a motion brought under Federal Rule of Civil Procedure 60(b).

Id. at 260-61. Important here, in an exception following that waiver, the plea agreement states that "[n]otwithstanding the foregoing waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct." Id. at 261.

On December 11, 2017, the district court accepted Beasley's plea, sentencing him to 108 months' imprisonment and three years' supervised release.

Less than a year later, on May 5, 2018, Beasley filed a motion under 28 U.S.C. § 2255, seeking to vacate his conviction. Attempting to invoke the exception to his collateral-attack waiver, Beasley raised an ineffective-assistance-of-counsel claim.³ Specifically, he argued that he had been prejudiced by his counsel's alleged ineffective performance in not raising three arguments: (i) that the wiretap orders⁴ were facially insufficient because they stated that "interceptions may take place when the targettelephone is located in any other jurisdiction within the United States"; (ii) that the orders were facially insufficient under § 2518(4)(b) for not identifying "the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted"; and (iii) that because the orders failed to provide the necessary location information, they were roving wiretaps, meaning they were improperly authorized by a "Deputy Assistant Attorney General."⁵ R. vol. 2 at 295-302.

The district court dismissed Beasley's § 2255 petition. United States v. Beasley, No. 13-1012-01-JTM, 2020 WL 416987, at *4 (D. Kan. Jan. 27, 2020). Without mentioning or considering the exception to Beasley's collateral-attack waiver, the court concluded that Beasley had presented "no reason it should not be enforced." Id. at *2 (citation omitted). That said, the court noted that, under "the [Plea] Agreement and Cockerham," Beasley could challenge his counsel's alleged ineffective performance in negotiating his plea agreement. Id. But the court ruled that Beasley's ineffective-assistance claims were unrelated to his plea agreement or waiver and "instead [were] wholly tangential to the final plea agreement and waiver[.]" Id.

Despite that ruling, the district court next addressed the merits of Beasley's petition. The court reasoned that, under Dahda v. United States, 138 S. Ct. 1491 (2018), his challenge to the geographical scope of the wiretap orders failed because "the expansive geographic language in the warrant[s] was surplusage[.]" See id. And though the court reasoned that Dahda would have prohibited the government from introducing evidence obtained from a cell phone located outside of Kansas when, at the same time, a listening post had also been outside of Kansas, the record showed that such a situation had never occurred. See id. at *3 ("The record does not indicate that any interception of a cell phone located outside of Kansas occurred through the means of a listening post outside of Kansas."). As for Beasley's related argument that the orders were facially insufficient for failing to "explicitly mandate that the listening post be in Kansas," the court concluded that no authority "create[d] the explicit location requirement defendant claims." Id. Finally, the orders did not create roving wiretaps, the court concluded, because they allowed interceptions for only "particular telephones[.]" Id. at *4.

After rejecting Beasley's arguments, the court denied a COA, reasoning that reasonable jurists could not debate that Beasley's § 2255 petition was procedurally barred and substantively meritless. Id. at *4-5. Beasley now seeks a COA to challenge the district court's dismissal of his § 2255 petition.

DISCUSSION

I. The COA Standard

Beasley must obtain a COA to appeal the district court's dismissal of his § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B). We will issue a COA only when a § 2255petitioner makes "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). Here, the district court dismissed Beasley's petition on both procedural and substantive grounds. See United States v. Wicken, 514 F. App'x 721, 723-24 (10th Cir. 2013) (unpublished) (explaining that a court's enforcement of a "plea waiver" is a "procedural" ground for dismissal). Beasley therefore faces a double hurdle: he must show "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling" and "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).

II. Procedural Ruling

We review de novo whether a defendant's collateral-challenge waiver is enforceable. See United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). In analyzing that issue, we ask three questions: "(1) whether the disputed [claim] falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice." United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (alteration in original) (internal quotation marks omitted) (quoting United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2...