F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 9 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-5043 (D.C. No. 97-CV-22-C) v. (N.D. Okla.)
ROY GLOVER,
Defendant-Appellant.
Plaintiff-Appellee, No. 99-5046 v. (D.C. No. 94-CV-1011-C) (N.D. Okla.) MICHAEL ANTHONY YOUNGPETER,
Plaintiff-Appellee, No. 99-5051 v. (D.C. No. 97-CV-515-C) (N.D. Okla.) JOHNNY E. GLOVER,
Defendant-Appellant. UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-5054 v. (D.C. No. 97-CV-414-C) (N.D. Okla.) RANDY GLOVER,
ORDER AND JUDGMENT *
Before KELLY , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
These companioned appeals arise out of an underlying drug conspiracy
involving a number of defendants, three of whom, Roy Glover, Randy Glover, and
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2- Johnny Glover, are now before this court seeking certificates of appealability
(COA) in order to appeal the district court’s dismissal of their motions to vacate,
set aside, or correct an illegal sentence under 28 U.S.C. § 2255. Michael
Youngpeter, the fourth defendant before this court, requests a certificate of
probable cause (CPC), which we construe as a request for COA. See
Fed. R. App. P. 22(b)(2). For the reasons that follow, we conclude defendants
each have failed to make a “substantial showing of the denial of a constitutional
right” and we deny their requests for COA. 28 U.S.C. § 2253(c)(2).
I. Background
The underlying facts are discussed only as relevant; they have been set
forth in prior decisions of this court. Facts that pertain only to a particular
defendant are discussed in the context of that defendant’s § 2255 motion only. In
brief, defendants–some of whom are related–were convicted of participating in a
drug ring that manufactured and sold methamphetamine. At trial and during
sentencing (after conviction by jury or guilty plea), the government maintained
that because it had not collected any samples from the crime scene, it did not
perform any chemical analyses of the methamphetamine. Nevertheless, the
district court sentenced all the defendants under the sentencing guidelines then in
effect for d-methamphetamine, rather than the sentencing guidelines then in effect
-3- for l-methamphetamine. 1 Subsequently, we remanded the § 2255 motions of two
co-defendants, Robert Glover and David Wann (neither of whom are presently
before us), and ordered the district court to hold an evidentiary hearing to
determine whether the methamphetamine isomer was d- or l-. See United States
v. Robert Glover , 97 F.3d 1345 (10th Cir. 1996). In that context, this court
explained that it was the government’s post-conviction “burden of proof and
production to show by a preponderance of the evidence the type of
methamphetamine involved in [defendants’] offenses.” Id. at 1347 (quotation
omitted).
In separate decisions postdating Robert Glover , we remanded three of
defendants’ § 2255 motions for a similar hearing–those of Randy Glover, Roy
Glover, and Youngpeter. Based on this court’s remands, the district court held an
evidentiary hearing on February 23, 1999. These defendants were present at the
hearing and represented by counsel (Roy Glover has subsequently become pro se).
The government produced three witnesses: (1) Earl Beaver, an agent for the
Oklahoma Bureau of Narcotics; (2) John C. Salley, a special agent for the Drug
Enforcement Agency (DEA); and (3) Dr. William Kent Glanville, a senior
1 At the time of defendants’ sentencings, the sentencing guidelines in effect differentiated between l-methamphetamine and d-methamphetamine, treating the latter more harshly. See United States v. Robert Glover , 97 F.3d 1345, 1347 (10th Cir. 1996). The guidelines no longer distinguish between the two. See id at 1347 n.2.
-4- forensic chemist employed by the DEA in Texas. The evidence at the hearing was
the same as that presented by the government in earlier similar hearings. See
United States v. Youngpeter , No. 97-5142, 1998 WL 171838, at **5 (10th Cir.
April 13, 1998) (discussing Dr. Glanville’s testimony in an earlier hearing).
As an initial matter, the district court denied defendants’ outstanding
motions to exclude forensic evidence and the hearing proceeded. The first
witness, Mr. Beaver, who helped execute a search warrant in April 1989, testified
generally about defendants’ clandestine methamphetamine laboratory. See
R., Vol. VIII at 6-35. Next, Mr. Salley, also present when the search warrant was
executed, testified that he collected chemical samples at the scene and sent them
to the DEA’s laboratory in Dallas for analysis. See id. at 38-39; 43-44. The
government’s last witness, Dr. Glanville, testified that he tested the substances
sent by Mr. Salley by performing a mycrocrystal test, and found them to be
d, l-methamphetamine. See id. at 52-53. He also testified that if a drug lab
manufactures methamphetamine using the controlled substance
phenyl-2-propanone–the “p2p” method–the result is production of both d- and
l-methamphetamine, i.e., d, l-methamphetamine. See id. at 49-51, 65. According
to Dr. Glanville, the substances recovered at the clandestine laboratory contained
p2p, see id. at 55, and it is apparent from his testimony defendants were using the
p2p method of methamphetamine production. See id. at 49-56. For sentencing
-5- purposes, d, l-methamphetamine is treated the same as d-methamphetamine. See
United States v. Decker , 55 F.3d 1509, 1512-13 (10th Cir. 1995).
At the close of the hearing, the court questioned the government vigorously
why for eight years it had denied the existence of drug samples and chemical
analyses. The government was not able to explain its lapse. The district court
then ruled from the bench as follows:
[I]t’s clear that the evidence establishes beyond a reasonable doubt that this was a dl drug.
It is exceedingly unfortunate that these tests were not made available, although I can only say from the little experience I’ve had in the law, that it was to [defendants’] benefit in the long run, because it made the prosecution more difficult. I can’t imagine the government not having brought this forward had they known about it. I was very interested as to why this occurred, but apparently nobody knows. It must be one of those mysteries.
But the Court must look to the evidence that’s presented at this hearing. That’s the purpose of the hearing. The sole and only evidence that’s been presented is that the product from the residues that were found was methamphetamine, and it was a dl-Methamphetamine. We’re here, actually, because the sentencing commission at sometime in its wisdom came out with a differential in the sentencing guidelines that dealt with d and l-Methamphetamine. That’s all been abolished now, because they have determined that it was kind of foolish from the first that they did that. But that doesn’t change anything. These gentleman are entitled to those guidelines to be applied as they were at the time of the sentencing.
But the evidence is conclusive. It’s the only evidence that’s been brought before the Court that the methamphetamine that was under consideration of the prosecution and the conviction, and what the Court should have considered at the sentencing was a dl, a d guideline, sentencing guideline, and that’s what the Court did.
-6- I therefore deny the motions of the defendant[s] and state that the sentencing[s] as heretofor pronounced are correct under the evidence and under the law.
R., Vol. VIII at 93-94. Thereafter, the district court entered brief orders denying
defendants’ § 2255 motions.
II. Michael Youngpeter
Youngpeter is the only defendant presently before us who filed his § 2255
motion in the district court before the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) took effect. His appeal, however, postdates AEDPA.
Under United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) , this
court does not require COA in these circumstances for appeals arising in either
§§ 2254 or 2255 proceedings. The Supreme Court’s recent decision in Slack v.
McDaniel , 120 S. Ct. 1595, 1600 (2000), however, affects Kunzman and, in turn,
Youngpeter. In Slack , the Supreme Court held that a petitioner in a state habeas
proceeding under 28 U.S.C. § 2254 must now obtain a certificate of appealability
if his appeal is filed after AEDPA’s effective date, despite the fact that the
petition was filed in district court prior to AEDPA. See id. at 1600, 1601.
Although the Supreme Court’s decision addresses a § 2254 habeas petition, and
not a § 2255 motion, the Court construed AEDPA’s § 2253 COA requirement in
general terms. See id. at 1602-03. That section applies to both §§ 2255 and
2254 proceedings.
-7- Based on the Supreme Court’s superseding decision in Slack –which
contradicts this court’s holding in Kunzman –we do not apply Kunzman . See In
re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of
prior panels absent an en banc reconsideration or a superseding contrary decision
by the Supreme Court.”). A defendant, like Youngpeter, who files his § 2255
motion in district court before AEDPA’s effective date, but files his appeal of the
district court’s denial of that motion in this court after AEDPA’s effective date,
must now obtain COA. Accordingly, we construe Youngpeter’s request for CPC
as a request for COA. 2 We note, however, that because Youngpeter’s motion does
not merit our issuance of COA, we would have reached the same result if we had
conducted a full merits review of his § 2255 motion .
A jury convicted Youngpeter in September 1991 of conspiracy to
manufacture, possess, and sell methamphetamine. He was sentenced to 188
months’ imprisonment. He filed his § 2255 motion in 1994 alleging, among other
things, that his trial counsel was ineffective because he failed to make the
government prove at sentencing the specific type of methamphetamine involved in
2 We further note that Youngpeter erroneously moved for CPC, which was never required of a § 2255 movant, but rather only of a pre-AEDPA § 2254 petitioner. See United States v. Lopez , 100 F.3d 113, 117 n.3 (10th Cir. 1996). Youngpeter’s request for CPC was perhaps precipitated by our earlier decision in his case wherein we erred procedurally by granting CPC. See Youngpeter , 1998 WL 171838, at **2. Because of the Supreme Court’s decision in Slack requiring COA, however, Youngpeter’s request for CPC was prescient.
-8- the conspiracy and failed to conduct a chemical analysis of the methamphetamine.
We affirmed the district court’s denial of that motion, based on the district court’s
factual finding that there was no way to conduct a chemical analysis because the
government did not recover any methamphetamine. See United States v.
Youngpeter , No. 95-5179, 1996 WL 221386, at **1 (10th Cir. May 2, 1996). We
also held that Youngpeter failed to show that he was prejudiced by his attorney’s
alleged incompetence, again noting that without samples, drug tests could not be
performed. See id. at **2.
Subsequently, based on our intervening decision in Robert Glover , 97 F.3d
1345, we recalled the mandate in Youngpeter’s case, and remanded, directing to
the district court to conduct an evidentiary hearing. See Youngpeter , 1998 WL
171838, at **1. Shortly after our remand, the district court held an evidentiary
hearing on the same issue as to yet another of the defendants involved in the
conspiracy, James Barnes, apropos to our remand of Barnes’s § 2255 motion. See
id. The evidence at Barnes’s hearing established that the methamphetamine was a
combination of d- and l-methamphetamine. See id. at **2. Instead of holding a
separate hearing on remand of Youngpeter’s § 2255 motion, the district court
again denied the motion, applying the outcome of Barnes’s hearing. See id. We
found that denial deprived Youngpeter “of both his right to be present and his
-9- right to be represented during this hearing.” See id. at **3. Thereafter, the
district court held the evidentiary hearing at issue in these companioned appeals.
Youngpeter now argues that the government’s evidence at the February 23,
1999 hearing is barred by the doctrine of collateral estoppel. In particular, he
argues that, because the district court accepted the government’s representations
that it did not recover any methamphetamine from the scene, and that it did not
perform any drug tests, the district court made a “finding of ultimate fact.”
Appellant’s Br. (Youngpeter) at 7. Hence, he asserts that “[b]ased on the doctrine
of collateral estoppel the court cannot allow any party to reverse field and
suddenly argue facts directly contradicting matters previously presented by that
same party.” Id. at 8.
Youngpeter is correct that “when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit." Ashe v. Swenson , 397 U.S. 436,
443 (1970). In order to apply the doctrine of collateral estoppel, this court
requires that:
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Dodge v. Cotter Corp. , 203 F.3d 1190, 1198 (10th Cir. 2000).
-10- Youngpeter’s characterization of the district court’s statement that the
government did not recover any drugs, nor perform any chemical analyses, as a
finding of “ultimate fact,” is not correct. An ultimate fact is “a factual conclusion
essential to the result.” Flavor Corp. of Am. v. Kemin Indus. Inc. , 493 F.2d 275,
280 n.5 (8th Cir. 1974) (distilling Judge Learned Hand’s definition of the
“ultimate fact” from The Evergreens v. Nunan , 141 F.2d 927, 928 (2d Cir. 1944));
see also Black’s Law Dictionary at 1522 (6th ed. 1990). Here, the district court
relied on the government’s stated position. Hence, the government’s recovery of
drug samples and testing was neither litigated nor adjudicated–for collateral
estoppel purposes–until after the evidentiary hearings held apropos to this court’s
various remands. See Dodge , 203 F.3d at 1198
Admittedly, there is something compelling about Youngpeter’s argument.
Its draw is based on the government’s eight-year stance denying the existence of
drug samples and chemical analyses until the eve of the first such evidentiary
hearing. This court has commented negatively on the government’s last minute
fortuitous discovery. See Youngpeter , 1998 WL 171838, at **5 (noting as
questionable the “trustworthiness of records” that “vanished for eight years” and
“magically reappeared in the nick of time”). The district court’s recitation of the
government’s earlier position, however, does not implicate the doctrine of
collateral estoppel. Rather, Youngpeter’s argument falls within the doctrine of
-11- judicial estoppel. Specifically, he seeks to estop the government from presenting
evidence in the context of a § 2255 hearing, based on its proffer in earlier
proceedings that the evidence did not exist. See Rascon v. U S West
Communications, Inc. , 143 F.3d 1324, 1330 (10th Cir. 1998) (“Judicial estoppel
bars a party from adopting inconsistent positions in the same or related
litigation.” (quotation omitted)). This circuit has expressly rejected the doctrine
of judicial estoppel. See id.
The district court, after numerous hearings, found that the government met
its burden to show d-methamphetamine. In doing so, it necessarily credited the
testimony of both the DEA agent who collected the samples and the DEA forensic
chemist who tested the samples. In its decision, the district court stated that,
although unexplained, the government’s long delay did not prejudice defendants
nor benefit the government. The district court did not err in allowing the forensic
evidence and testimony concerning the type of methamphetamine underlying the
conspiracy. Indeed, the district court fulfilled our specific mandate, directing it
to hold an evidentiary hearing in order to determine the methamphetamine type.
As this court stated earlier, “[i]f the government can establish that the substance
was in fact d-methamphetamine, [defendants] obviously would not be entitled to
resentencing.” Robert Glover , 97 F.3d at 1350 (footnote omitted).
-12- Accordingly, we deny Youngpeter’s request for COA and dismiss his
appeal.
III. Roy Glover
A jury convicted pro se petitioner Roy Glover in September 1991 of
conspiracy to manufacture, possess, and distribute methamphetamine. He was
sentenced to 235 months’ imprisonment. On his appeal of the district court’s
denial of his § 2255 motion, this court granted COA on one issue, whether the
sentencing court erred by using d-methamphetamine instead of
l-methamphetamine to establish his base offense, and denied a certificate on his
other issues. This court then reversed and remanded for the same reasons
discussed in Youngpeter’s remand. See United States v. Roy Glover ,
No. 97-5130, 1998 WL 544406, at **1 (10th Cir. Aug. 27, 1998), cert. denied ,
525 U.S. 1163 (1999).
Roy Glover argues the following on appeal: (1) the government withheld
evidence in violation of various doctrines; (2) the government is barred from
presenting forensic evidence at the hearing based on the doctrines of collateral
estoppel and res judicata; (3) the district court did not properly exercise its
supervisory powers to prevent Dr. Glanville’s inconsistent and contradictory
statements during the hearing; (4) the district court abused its discretion by
allowing irrelevant testimony in violation of Fed. R. Evid. 702; (5) the district
-13- court imposed a sentencing guideline in violation of the Ex Post Facto clause;
(6) the district court should have granted his § 2255 motion because of conflicting
statutory punishments; and (7) he was denied effective assistance of counsel
because his counsel failed to perfect a timely notice of appeal, in his challenge of
the district court’s denial of a Fed. R. Crim. P. 33 motion for new trial based on
new evidence.
We find that none of Roy Glover’s issues merit COA and dismiss his
appeal. Moreover, we note that some of Roy Glover’s issues do not flow from
our remand and, hence, they are barred as successive § 2255 motions. See 28
U.S.C. §§ 2244(a), 2255 . For this reason, we deny Roy Glover’s motion to
supplement the proceedings.
IV. Randy Glover
A jury convicted Randy Glover of conspiracy to manufacture, possess, and
distribute methamphetamine. He was sentenced to 292 months’ imprisonment.
We remanded Randy Glover’s case for an evidentiary hearing for the same reason
outlined in our discussion of Mr. Youngpeter’s petition. See United States v.
Randy Glover , No. 97-5239, 1998 WL 544408, at **1 (10th Cir. Aug. 27, 1998).
Randy Glover now appeals from the district court’s denial of his § 2255 motion
after the evidentiary hearing.
-14- Randy Glover’s counsel has filed an Anders brief, together with his
amended motion to withdraw, in which he advises this court that Randy Glover’s
appeal has no merit. See Anders v. California , 386 U.S. 738, 744 (1967)
(requiring counsel to accompany a request to withdraw with “a brief referring to
anything in the record that might arguably support the appeal”). Per Randy
Glover’s instruction, counsel has also filed a motion for appointment of new
counsel under the Criminal Justice Act (CJA).
In response to counsel’s Anders brief, Randy Glover filed a pro se brief
detailing why his appeal is not frivolous. He argues that: (1) COA is not required
because of this court’s earlier grant of a COA in his case; (2) the district court
erred in permitting forensic evidence and should have collaterally estopped the
government’s evidence.
As to Randy Glover’s first assertion, in its remand order, this court
reversed the district court’s judgment denying Randy Glover’s § 2255 motion.
See Randy Glover , 1998 WL 544408, at **1. Therefore, when the district court
entered its order after remand denying the motion after the hearing, that
constituted the new “final order,” the denial from which Randy Glover now seeks
to appeal. To appeal that final order, he must obtain a new certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(B). Randy Glover’s second issue has
-15- already been addressed above. Accordingly, we deny his requests for COA and
new CJA counsel, and grant counsel’s motion to withdraw.
V. Johnny Glover
Next, we turn to Johnny Glover’s § 2255 motion, which this court
remanded for reasons not related to any of the above discussed motions. In 1991,
Johnny Glover pled guilty to a methamphetamine crime and conspiracy to launder
money and was sentenced to 150 and 60 months’ imprisonment, respectively, the
sentences to run concurrently. He did not appeal his conviction. Instead, he
waited until May 29, 1997–approximately one month after AEDPA’s one-year
grace period had expired–to file his § 2255 motion. See United States v.
Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) (according one-year grace period
to “prisoners whose convictions became final on or before April 24, 1996”). The
district court found his motion time barred and dismissed it. Johnny Glover
appealed that determination, arguing that the government created an impediment
that caused him to file his motion late.
On his appeal of that decision, this court remanded his § 2255 motion with
instructions to the district court “for findings regarding whether there was an
impediment created by governmental action in violation of the Constitution or
laws of the United States, and if it prevented [Johnny Glover] from filing his
motion on time.” United States v. Johnny Glover , No. 97-5158, 1998 WL
-16- 453674, at **1 (10th Cir. Aug. 5, 1998). We also left the district court free to
consider equitable tolling arguments, granted Johnny Glover’s certificate of
appealability, vacated the district court’s order denying the motion as time barred
under the AEDPA, and remanded the case. See id. at **1 & n.2.
The main issue before the district court on remand was whether Johnny
Glover’s § 2255 motion was late because the government impeded its filing by
not responding to his requests for information made under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552. Although Johnny Glover’s first request
was in 1994, he did not receive the FOIA materials until approximately August
1997, after he had already filed his § 2255 motion. The district court held a
hearing on December 17, 1998. The only witness who testified at the hearing was
Johnny Glover, who was called by the government only in response to the district
court’s prodding. The evidentiary hearing did not reveal any new pertinent
evidence on Johnny Glover’s impediment claim.
The district court found that, because Johnny Glover was able to file his
§ 2255 motion before his receipt of the documents, there was no AEDPA
impediment. See R., Vol. II, Doc. 398 at 3. The district court was not persuaded
by Johnny Glover’s argument that he could have filed a better § 2255 motion with
the FOIA materials, and noted that the comprehensiveness of the motion filed by
Johnny Glover belied his assertion. See id. at 3-4. Last, the district court found
-17- no grounds for equitable tolling. See id. at 5-6. On appeal, Johnny Glover
contends that: (1) the government impeded or prevented his ability to file his
§ 2255 motion; (2) he diligently pursued the steps he thought necessary for filing
his motion; and (3) equitable tolling applies.
We agree that there was no impediment and that the doctrine of equitable
tolling does not apply. AEDPA provides, in relevant part, that the one-year
limitation period “ shall run from . . . the date on which the impediment to making
a motion created by the governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was prevented from making a
motion by such governmental action.” 28 U.S.C. § 2255. Here, there was no
government action in violation of the Constitution or the laws of the United
States, nor an impediment that prevented the filing of the motion. Moreover,
Johnny Glover is not eligible for equitable tolling; he waited an extended period
of time before filing his initial motion, and waited three years after his conviction
to make his FOIA request. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir.
1998) (stating that only petitioners who diligently pursue their habeas remedies
can benefit under the equitable tolling doctrine) . Because Johnny Glover’s
motion is time barred under AEDPA, we deny his request for COA.
VI. Conclusion
-18- Accordingly, we: (1) DENY defendants’ requests for certificates of
appealability, and DISMISS their § 2255 motions; (2) GRANT Randy Glover’s
counsel’s motion to withdraw (No. 99-5054); (3) DENY Randy Glover’s
application for new CJA counsel (No. 99-5054); and (4) DENY Roy Glover’s
“Motion for Leave of Court to Supplement Proceedings” (No. 99-5043)
Entered for the Court
Robert H. Henry Circuit Judge
-19-