United States v. Handy, 071818 FED10, 18-3086

Docket Nº:18-3086
Opinion Judge:Carolyn B. McHugh Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VERDALE HANDY, Defendant-Appellant.
Judge Panel:Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
Case Date:July 18, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

VERDALE HANDY, Defendant-Appellant.

No. 18-3086

United States Court of Appeals, Tenth Circuit

July 18, 2018

D.C. Nos. 2:16-CV-02724-CM and 2:09-CR-20046-CM-8) (D. Kansas)

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY

[*]

Carolyn B. McHugh Circuit Judge.

Verdale Handy, a federal prisoner appearing pro se, [1] seeks a certificate of appealability ("COA") to challenge the district court's denial of his motion seeking relief from a final judgment under Federal Rule of Civil Procedure 60(b)(4). Because Mr. Handy has failed to make "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.

I. BACKGROUND

Mr. Handy is serving a life sentence in federal prison. He was convicted in 2010 of multiple drug trafficking offenses, attempted murder, and possession and use of a firearm during a crime of violence. We affirmed his convictions and sentence on direct appeal. United States v. Handy, 505 Fed.Appx. 682 (10th Cir. 2012) ("Handy I "). After unsuccessfully petitioning the Supreme Court for a writ of certiorari, see Handy v. United States, 569 U.S. 1011 (2013), Mr. Handy has since filed a succession of pro se motions and appeals seeking to reopen his case.

First, he brought a 28 U.S.C. § 2255 motion claiming that his counsel provided ineffective assistance of counsel on direct appeal for failing to argue that certain coconspirator statements should not have been admitted at trial. He asserted that evidence presented at his James hearing2 did not establish the existence of a conspiracy, and he faulted his counsel for failing to argue that Pamela Bennett, a Kansas City police detective, lied when testifying at that hearing. The district court denied relief and declined to issue a COA. Mr. Handy renewed his request for a COA in this court, but we too denied a COA, concluding reasonable jurists would not debate the district court's conclusion and dismissing Mr. Handy's appeal. United States v. Handy, 614 Fed.Appx. 379 (10th Cir. 2015) ("Handy II ").

Second, he filed a motion under Federal Rule of Civil Procedure 60(b) claiming that his due process rights were violated when the government failed to respond to his § 2255 argument that Detective Bennett testified falsely at his James hearing. The district court denied Mr. Handy's motion on the merits. He appealed again. We concluded that Mr. Handy's motion was "not a true Rule 60(b) motion" but rather a "second or successive attempt at post-conviction relief based upon arguments already rejected." United States v. Handy, 646 Fed.Appx. 635, 637 (10th Cir. 2016) ("Handy III"). We vacated the district court's disposition on the merits for lack of jurisdiction and construed Mr. Handy's Rule 60(b) motion as an application to file a second or successive motion under 28 U.S.C. § 2244, which we denied. Id. at 637.

Third, he filed a motion under Federal Rule of Civil Procedure 15 to amend his original § 2255 motion to add a claim that the court failed to rule on his claim of fabricated testimony at the James hearing and for ineffective assistance of counsel. The district court construed Mr. Handy's motion to amend as an unauthorized successive § 2255 motion and dismissed it for lack of jurisdiction. Mr. Handy again sought to appeal. But we again denied a COA, concluding that the claims Mr. Handy wanted to pursue were the same claims presented in a prior § 2255 application and therefore were subject to dismissal. United States v. Handy, 703 Fed.Appx. 685, 687 (10th Cir. 2017) ("Handy IV").

A few weeks after our 2017 ruling, Mr. Handy filed two more motions in the district court. First, he filed a motion under Federal Rule of Civil Procedure 60(b)(4) asserting that the district court failed to rule on his § 2255 claim for fabricated false testimony and that this failure amounted to a procedural defect in his § 2255 proceedings. Second, he filed a...

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