United States v. Deberry
| Decision Date | 12 December 2011 |
| Docket Number | No. 11-1355,D.C. No. 1:03-CR-00495-WDM,D.C. No. 1:11-CV-01053-WDM,11-1355 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FREDERICK D. DEBERRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colo.)
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Frederick Deberry, a federal prisoner proceeding pro se,1 seeks a certificate of appealability ("COA") to challenge the district court's denial of his motion for relief under 28 U.S.C. § 2255. Mr. Deberry has also filed a motion to proceed informa pauperis on appeal. We deny Mr. Deberry's application for a COA and dismiss his appeal. We also deny his motion to proceed in forma pauperis.
The relevant facts are set forth in the district court's order denying Mr. Deberry's § 2255 motion; in our decision in United States v. Deberry, 364 F. App'x 404 (10th Cir. 2010), arising from Mr. Deberry's direct appeal in this case; and our decision in United States v. Deberry, 430 F.3d 1294 (10th Cir. 2005), adjudicating the government's direct appeal. In brief, while imprisoned at the U.S. Penitentiary in Florence, Colorado, Mr. Deberry and two fellow inmates, Rodgerick Lackey and Paul Talifero, collaborated in an assault on another inmate, Wayne Wheelock. In the course of the attack, Mr. Deberry allegedly stabbed Mr. Wheelock five times in the back with an ice-pick-style weapon (colloquially known as a "shank"). Mr. Deberry and his erstwhile collaborators are African American. The victim, Mr. Wheelock, is Native American. Three days after the altercation, three Native American inmates attacked and allegedly stabbed an African American inmate, Arnold Haskins, in retaliation for Mr. Deberry's assault on Mr. Wheelock.
Following an investigation, Messrs. Deberry, Lackey, and Talifero were charged in a four-count superseding indictment in October 2003. However, the Native American inmates involved in the later attack were not immediately charged. Mr. Deberry and his codefendants then brought a claim of selectiveprosecution. The district court ordered discovery, but the government refused to comply. The court then dismissed the indictment against the three defendants, allowing the government to appeal the discovery order. In the meantime, in July 2005, the Native American inmates involved in the later attack were indicted.
In December 2005, this court reversed the district court's dismissal of the indictment against Messrs. Deberry, Lackey, and Talifero. Deberry, 430 F.3d at 1302. We held that the defendants had not carried their burden under United States v. Armstrong, 517 U.S. 456 (1996), of showing both discriminatory effect and discriminatory intent in order to warrant discovery on a selective-prosecution claim. Deberry, 430 F.3d at 1300-01. In particular, we concluded that the defendants and the Native American inmates were not similarly situated in one significant respect: A video camera captured the defendants' attack on Mr. Wheelock, while the Native American inmates' attack on Mr. Haskins occurred inside a cell, out of camera range, thus necessitating the use of less reliable evidence (eyewitness testimony) and more preparation for trial. Id. at 1301.
After remand, Mr. Deberry entered into a plea bargain with the government, agreeing to plead guilty to one count of possession of a dangerous weapon in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), in exchange for dismissal of all other charges against him. Although Mr. Deberry's guilty plea pertained to possession only, the plea agreement contained a description of the alleged assault, and Mr. Deberry objected to some of its language. By handwritten note attachedto the agreement and initialed by the parties, Mr. Deberry reserved the right to contest language indicating that he did anything other than possess the prohibited weapon. He also reserved the right to contest the extent of any injuries sustained by the victim, Mr. Wheelock. At the change of plea hearing, the parties clarified that Mr. Deberry was admitting to possession of the weapon but specifically disavowing any use of the weapon in connection with Mr. Wheelock's injuries.
A pre-sentence report ("PSR") was prepared that calculated Mr. Deberry's offense level at eleven with a criminal history category of IV, resulting in an advisory Guidelines range of eighteen to twenty-four months in prison. However, the PSR recommended an upward departure to a sentence of sixty months (the statutory maximum for possession) based on the alleged assault and the extent of the resulting injuries. Mr. Deberry objected to the recommended sentence and disputed the facts contained in the PSR. In response, the court scheduled an evidentiary hearing.
During the hearing, the court heard testimony from four witnesses and admitted several exhibits, including the video recording of the altercation and the shank allegedly used against Mr. Wheelock. After considering the evidence and the parties' arguments, the court found by a preponderance of the evidence that Mr. Wheelock suffered a life-threatening injury and that Mr. Deberry intentionally inflicted that injury. Based on these findings, the court determined that an upward departure was warranted and, after considering the Guidelines andthe other 18 U.S.C. § 3553(a) factors, imposed a sentence of fifty-four months.
On direct appeal, Mr. Deberry argued that the upward departure based on the district court's findings of fact denied him his Sixth Amendment right to trial by jury. We rejected this argument based on the well-established principle that (as long as the Guidelines are applied in advisory fashion) a defendant has no constitutional right to a jury determination of the facts supporting a sentencing enhancement if that enhancement falls within the statutory range for the offense. See Deberry, 364 F. App'x at 406. We thus affirmed Mr. Deberry's conviction and sentence, and the Supreme Court denied certiorari on June 1, 2010, see 130 S. Ct. 3371 (2010).
On April 21, 2011, Mr. Deberry filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting four claims: (1) vindictive and/or discriminatory prosecution, (2) judicial bias, (3) abuse of discretion by the sentencing court, and (4) ineffective assistance of counsel. On June 13, 2011, Mr. Deberry filed a motion to amend and add a fifth claim. The district court granted Mr. Deberry's motion to amend. In his fifth claim, Mr. Deberry asserted that the length of his sentence was unreasonable. The district court subsequently denied the § 2255 motion, as amended, and entered judgment on July 22, 2011. Mr. Deberry filed a notice of appeal on July 27, 2011. The district court then denied both his request for a COA and leave to proceed in forma pauperis on appeal. Mr. Deberry now seeks a COA from this court,reasserting his five claims for relief.2 He also seeks our leave to proceed in forma pauperis.
A COA is a jurisdictional prerequisite to our review of the merits of a habeas appeal. See 28 U.S.C. § 2253(c)(1)(B); accord United States v. Tony, 637 F.3d 1153, 1157 (10th Cir. 2011). We will issue a COA "only if the [movant] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, the movant must demonstrate that "reasonable jurists could debate whether . . . the [§ 2255 motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Tony, 637 F.3d at 1157 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted). When, as here, the district court denies a motion on the merits, the movant carries his burden by showing that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." United States v. Bedford, 628 F.3d 1232, 1234 (10th Cir. 2010) (quoting Slack, 529 U.S. at 484).
Four of the five claims that Mr. Deberry puts forth in his COA application arise out of the fifty-four-month sentence that was imposed by the district court and affirmed on direct appeal in Deberry, 364 F. App'x 404. In claim one (claim two in his original § 2255 motion before the district court), Mr. Deberry alleges judicial bias based on the stated findings of the district court at the sentencing hearing. In claim three (claim one in his original § 2255 motion), he alleges that he has been subject to vindictive prosecution and racial discrimination because the Native American inmates involved in the retaliatory attack received more lenient sentences than he and because the government sought the maximum sentence against him out of retaliation for his previous assertions of discriminatory prosecution. Claims two and four (originally claims three and five) are, in substance, challenges to the reasonableness of his sentence. Mr. Deberry asserts that the district court abused its discretion during the sentencing phase by failing to consider U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 5K2.10, applicable when a victim's conduct is wrongful and provocative; and that the length of his sentence is unreasonable in light of both Mr. Wheelock's provocations and the disparity in sentencing vis-à-vis his codefendants and the Native American inmates. In his fifth (originally fourth) claim, Mr. Deberry argues that his counsel was constitutionally deficient for failing to "raise as grounds the issues and claims now raised herein for appeal review." Aplt.Combined Opening Br. & Appl. for COA at 15.
None of the first four claims was raised by Mr. Deberry on direct appeal, and it is well-established that § 2255 is ordinarily "not available to test the legality of matters which should have been raised on appeal." United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (quoting United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987)) (internal quotation marks...
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