Foreman v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 9, 2009
• Docket: 08-5156
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 9, 2009 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-5156 (D.C. Nos. 05-CV-00080-TCK-SAJ TIM FOREMAN, and 02-CR-135-TCK) (N.D. Okla.) Defendant-Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.

Tim Foreman was convicted by a jury of various crimes in connection with

an armed bank robbery and subsequent witness tampering. He was sentenced to

894 months imprisonment, followed by five years of supervised release, and he

was ordered to pay restitution. This court affirmed Mr. Foreman’s conviction and

sentence on January 21, 2004. United States v. Foreman, 87 Fed. Appx. 107, 108

(10th Cir. 2004).

* This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. On February 7, 2005, Mr. Foreman challenged his sentence collaterally,

filing a pro se habeas motion under 28 U.S.C. § 2255. The district court

dismissed the motion, finding that Mr. Foreman was entitled to no relief because

he failed to show that his sentence was unconstitutionally imposed. Mr. Foreman

now seeks a certificate of appealability (“COA”) from us in order to appeal the

district court’s order.

Under the terms of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), we may issue a COA only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under

this standard, Mr. Foreman must demonstrate that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Our inquiry does not require a “full consideration of the

factual or legal bases adduced in support of [the applicant’s] claims,” but, rather,

“an overview of the claims . . . and a general assessment of their merits.” Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003).

Mr. Foreman is a pro se litigant, so we construe his pleading and others

papers with solicitude. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th

Cir. 2007). Before the district court, Mr. Foreman raised four claims of

ineffective assistance of counsel and one claim of alleged prosecutorial

-2- misconduct. In a thorough fourteen-page opinion, the district court rejected each

of Mr. Foreman’s constitutional claims. As to his ineffective assistance claims,

the district court held that Mr. Foreman failed to show deficient performance by

his attorney or prejudice resulting from his attorney’s performance; as to Mr.

Foreman’s prosecutorial misconduct claim, the court held that he had failed to

show cause and prejudice to overcome procedural default. After reviewing the

record, we conclude no reasonable jurist could doubt the correctness of the

district court’s disposition. Accordingly, and for substantially the same reasons

given by the district court, we deny Mr. Foreman’s application for a COA. The

appeal is dismissed.

ENTERED FOR THE COURT

Neil M. Gorsuch Circuit Judge

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