Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 12, 2022 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2027 (D.C. Nos. 1:19-CV-00200-TMT & MATTHEW CHANNON, 1:13-CR-00966-JCH-SMV-1) (D. N.M.) Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
v. No. 21-2028 (D.C. Nos. 1:19-CV-00201-TMT & BRANDI CHANNON, 1:13-CR-00966-JCH-SMV-2) (D. N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________
We have consolidated these appeals for purposes of disposition. Brandi and
Matthew Channon, proceeding pro se, each petition this court for a certificate of
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 2
appealability (“COA”) so they may appeal the district court’s denial of their
28 U.S.C. § 2255 motions. We hold that the district court lacked jurisdiction over
Brandi’s motion and that Matthew does not qualify for a COA. We therefore deny
their petitions and dismiss these matters.
I. BACKGROUND & PROCEDURAL HISTORY
The events leading to the Channons’ federal prosecution took place in 2009
and 2010, when the Channons exploited weaknesses in OfficeMax’s “MaxPerks”
customer loyalty program to obtain OfficeMax products and prepaid gift cards worth
more than $100,000. One part of the scheme took advantage of OfficeMax’s process
for allowing MaxPerks members to claim rewards when they forgot to present their
MaxPerks cards at the register. OfficeMax’s website allowed a customer to enter
certain information from the receipt after the fact, thus crediting those purchases to
the customer’s MaxPerks account. Assuming most MaxPerks members would not go
through that trouble and using educated guesses based on information gleaned from
real OfficeMax receipts, the Channons claimed many other customers’ purchases as
their own.
MaxPerks members could also earn $3 in rewards for every used inkjet
cartridge returned to an OfficeMax store, up to twenty per customer per month. The
Channons purchased thousands of used cartridges on eBay for about $0.32 each.
They then traveled to OfficeMax stores throughout the country and used their many
fake MaxPerks accounts to turn in about 27,000 ink cartridges.
OfficeMax eventually discovered the Channons’ scheme and demanded they
2 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 3
repay about $81,000, or else OfficeMax would take its information to the FBI. The
Channons refused and OfficeMax contacted the FBI. The FBI searched the
Channons’ home. Matthew was not there at the time, but Brandi was, and she
confessed. Later, a grand jury indicted the Channons on wire fraud and conspiracy
charges.
Two federal public defenders represented Matthew at trial, and a CJA attorney
separately represented Brandi. Matthew’s attorneys decided the evidence against
their client was too strong to meaningfully rebut, so they chose not to contest the
facts underlying the government’s case. They instead focused on persuading the jury
that Matthew genuinely believed he was working within the MaxPerks terms and
conditions, so he did not have the necessary intent to defraud. Brandi’s attorney, for
his part, moved (unsuccessfully) to suppress her confession. At trial, he attempted to
minimize the confession but otherwise draw as little attention as possible to his
client, hoping the jury would acquit her when it realized that most of the
government’s evidence focused on Matthew. Brandi’s attorney also hoped to
position his client for a non-custodial sentence (assuming conviction).
The jury convicted the Channons on all counts. The district court sentenced
Matthew to one year plus one day in prison and two years’ supervised release. The
court sentenced Brandi to three years’ probation. This court affirmed their
convictions. See United States v. Channon, 881 F.3d 806, 809–11 (10th Cir. 2018).
Following our affirmance, the Channons filed timely § 2255 motions.
Matthew’s motion (not counting exhibits) spanned three docket entries and totaled
3 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 4
280 pages. Brandi’s original motion ran to 293 pages (again, not counting exhibits).
The district court struck these filings as overlong and needlessly verbose but granted
leave to file amended motions of no more than forty pages each. The Channons
complied. The amended motions asserted numerous grounds for relief, mostly based
on ineffective assistance of counsel. Twenty of those grounds were identical as
between the two motions. The government responded, attaching declarations from
the Channons’ attorneys explaining their actions and motives.
While these motions were pending, the District of New Mexico appointed one
of Matthew’s defense attorneys to be a magistrate judge. The district court then
deemed it appropriate for all the district’s judicial officers to recuse themselves. The
Channons’ cases were reassigned to Circuit Judge Timothy M. Tymkovich, sitting by
designation. Judge Tymkovich denied the Channons’ motions, finding they had not
met their burden on the ineffective-assistance-of-counsel elements, and they had
forfeited any grounds for relief not tied to ineffective assistance. He also denied a
COA. The Channons then timely moved for a COA from this court.
II. JURISDICTION
The district court’s jurisdiction turned on the Channons being “in custody
under sentence of a court established by Act of Congress.” 28 U.S.C. § 2255(a).
“[A] habeas petitioner [must] be ‘in custody’ under the conviction or sentence under
attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490–91 (1989)
(per curiam) (emphasis added) (interpreting § 2254); see also United States v.
Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (applying this rule to § 2255). If this
4 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 5
condition is met, then the petitioner’s release from custody before the court
adjudicates his petition does not divest the court of jurisdiction to consider challenges
to the conviction. See Carafas v. LaVallee, 391 U.S. 234, 238–39 (1968).
These principles create a potential jurisdictional problem for the Channons.
The relevant timeline is as follows:
• March 11, 2019. Matthew and Brandi file their respective § 2255
motions challenging their convictions. At the time, Brandi is still
serving her probationary sentence, which counts as “in custody” for
§ 2255 purposes, see United States v. Condit, 621 F.2d 1096, 1098
(10th Cir. 1980). Due to a court order postponing Matthew’s self-
surrender date, Matthew had yet to begin serving his prison term.
• March 14, 2019. The district court strikes the Channons’ § 2255
motions as overlong, but grants leave to file amended motions by
April 15.
• March 22, 2019. The district court grants Brandi’s motion for early
termination of probation.
• April 15, 2019. The Channons file their amended § 2255 motions.
• May 2, 2019. Matthew begins serving his prison sentence.
• March 6, 2020. Matthew discharges his prison sentence and begins
supervised release.
• December 3, 2021. The district court grants Matthew’s motion for
5 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 6
early termination of supervised release.
We have no trouble concluding that Matthew was “in custody” on April 15,
2019, when he filed his amended § 2255 motion. Although he had yet to begin
serving his prison term, he was subject to conditions and restrictions similar to
pretrial release or probation, and his upcoming prison term was certain. Cf. Maleng,
490 U.S. at 493 (holding that defendant under detainer for sentence he had not yet
begun to serve was “in custody” for purposes of habeas attack).
Brandi is on different footing. She was “in custody” (on probation) when she
filed her original § 2255 motion, but the court struck that motion. By the time she
filed her amended § 2255 motion, she was no longer “in custody” because the court
had terminated her probation. This raises the question whether Brandi’s original
motion still persisted in some sense, despite being stricken, such that her amended
motion could relate back to the original and thus preserve her “in custody” status.
We have not located a case from any jurisdiction addressing this fact pattern. But the
party claiming jurisdiction has the burden of convincing the court that jurisdiction
exists. See Bustillos, 31 F.3d at 933. Because Brandi has not addressed this
jurisdictional barrier, she fails to carry that burden. We therefore hold that the
district court lacked jurisdiction over her § 2255 motion, and we deny a COA on that
basis. See Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (holding that “we
may deny a COA if there is a plain procedural bar to habeas relief, even though the
district court did not rely on that bar,” and applying this principle to deny a COA
6 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 7
where the district court lacked jurisdiction to hear the petitioner’s habeas petition). 1
III. ANALYSIS
We now turn to Matthew’s claims. This matter may not proceed unless we
grant a COA, see 28 U.S.C. § 2253(c)(1)(B), and we may not grant a COA unless
Matthew “ma[kes] a substantial showing of the denial of a constitutional right,” id.
§ 2253(c)(2). This means he “must demonstrate 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).
A. District Court Page Limits
Matthew claims the district court erred in striking his original motion and
placing a forty-page limit on his amended motion. We may not review this claim
unless connected to the denial of a constitutional right. See United States v. Gordon,
172 F.3d 753, 754 (10th Cir. 1999) (“[C]laims [raised in a § 2255 proceeding] may
only be appealed . . . if they involve the denial of constitutional rights.”). The only
mention of a constitutional right in this portion of Matthew’s COA motion is a
heading invoking the First Amendment right to petition the government for redress of
grievances. See Aplt. Combined Opening Br. and Appl. for Certificate of
Appealability (“COA Motion”) at 9.
1 Even if the district court had jurisdiction over Brandi’s § 2255 motion, we would deny her a COA. Most of her arguments are identical to Matthew’s, and Matthew does not qualify for a COA. Brandi’s one unique claim likewise would not qualify for a COA. See infra n.5. 7 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 8
“[T]his court has repeatedly instructed that stray sentences like these are
insufficient to present an argument . . . .” Eizember v. Trammell, 803 F.3d 1129,
1141 (10th Cir. 2015). Accordingly, Matthew has not made a substantial showing
that the district court’s choice to strike his original § 2255 filings and impose a forty-
page limit violated any constitutional right.
This outcome has implications for eight other grounds on which Matthew
seeks a COA—namely, grounds 4, 6, 7, 8, 9, 10, 11, and 19. Matthew’s sole
argument concerning these grounds is that the district court would have reached a
different result if it had consulted the stricken filings. Because we may not issue a
COA to review the district court’s decision to strike those filings, we likewise may
not issue a COA as to these eight grounds. 2
B. Ineffective Assistance of Counsel as the Gateway to Other Claims
Matthew’s remaining grounds rely on alleged errors that could have been
raised during his criminal trial or on direct appeal. “Ordinarily, failure to raise an
issue either at trial or on direct appeal imposes a procedural bar to [§ 2255] review.”
United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir. 2002). An exception
applies to claims that trial or appellate counsel were constitutionally ineffective in
failing to present those issues. Massaro v. United States, 538 U.S. 500, 509 (2003).
With two exceptions—the stricken-filings argument already discussed and another
2 We further note Matthew does not argue that the district court’s forty-page limit amounted to a procedural termination of any claim on the merits.
8 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 9
argument we discuss at the end of this order (ground 13)—Matthew frames his
grounds for relief as matters of ineffective assistance.
A defendant claiming ineffective assistance must establish two elements:
(1) “counsel’s representation fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984); and (2) “the deficient
performance prejudiced the defense,” id. at 687. These elements create a mixed
question of fact and law. United States v. Orange, 447 F.3d 792, 796 (10th Cir.
2006). The district court is the decisionmaker, see Strickland, 466 U.S. at 690–91
(discussing the first element); id. at 694–96 (discussing the second element), subject
to our de novo review if the defendant receives a COA, Orange, 447 F.3d at 796.
Pointing out the district court’s decision-making role shows why this court
may not grant a COA on six of Matthew’s remaining grounds for relief, namely,
grounds 2, 5, 17, 18, 20, and 21. Matthew claims he deserves a COA on these
grounds because the district court cited no authority for deciding that he had not met
one or both elements of the Strickland test. 3 But the district court had no obligation
to cite authority. Indeed, Strickland emphasizes the case-by-case judgment needed
for every ineffective-assistance claim, in contrast to relying on authorities (such as
3 Grounds 18 and 21 also assert that the district court would have reached a different outcome if it had consulted the longer arguments in the stricken filings. These grounds fail for the additional reason that Matthew’s stricken-filings argument raises no constitutional issue, as already explained.
9 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 10
ABA practice standards). See 466 U.S. at 688–90, 693. So, as to these six grounds,
Matthew has not made a substantial showing of the denial of a constitutional right.
C. Remaining Ineffective-Assistance Claims
This leaves grounds 1, 3, 12, 14, 15, 16, and 22. The court will address them
in that order.
1. Failure to Challenge the Second Superseding Indictment (Ground 1)
Matthew’s criminal case went to trial on the second superseding indictment.
Count 1 of that indictment alleged that the Channons
conspir[ed] and agree[d] to devise a scheme and artifice to defraud and for obtaining money and property by means of materially false pretenses and representations, and to transmit and cause to be transmitted certain wire communications in interstate and foreign commerce for the purpose of executing the scheme, in violation of 18 U.S.C. § 1343 . . . .
R. vol. 2 at 72, ¶ 10. The cited statute (§ 1343) describes the substantive wire fraud
offense.
After a little more than two pages of detail about the alleged scheme, count 1
concluded with, “In violation of 18 U.S.C. § 1349.” Id. at 74. That statute proscribes
conspiracy “to commit any offense under this chapter,” including wire fraud.
In the § 2255 proceeding, Matthew pointed out that count 1 cited both § 1343
and § 1349 and asked, “So which one was it?” R. vol. 1 at 17. The district court
construed this as an argument that Matthew’s attorneys were ineffective because they
failed to move to dismiss the indictment as indefinite. Cf. Hamling v. United States,
10 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 11
418 U.S. 87, 117 (1974) (discussing the claim that “the indictment failed to give [the
defendants] adequate notice of the charges against them”). The court rejected the
argument, finding it “reasonably clear” that the indictment listed § 1343 as the
underlying offense justifying the § 1349 conspiracy charge. R. vol. 1 at 230. The
court alternatively found that the indictment’s caption clears up any possible
confusion because it states, “Count 1: 18 U.S.C. § 1349: Conspiracy to Commit Wire
Fraud.” Id. (quoting R. vol. 2 at 70).
Here, Matthew says the district court “miss[ed] the point entirely that the
judgment listed [count] 1 as under § 1343 and the discrepancy was the root of the
Ground.” COA Motion at 10. He is correct that, for whatever reason, the judgment
specifies § 1343 and “Wire Fraud” as the offense of conviction under count 1, R. vol.
2 at 144, which he pointed out in his § 2255 motion, R. vol. 1 at 17. But he raised
this argument to illustrate count 1’s alleged indefiniteness, not as the “root” of a
separate ground for relief. Even if it was meant as a separate ground, Matthew never
connected it to the ineffective assistance of his counsel, such as an error committed at
sentencing. 4
Regardless, count 1 is not indefinite. Federal criminal indictments typically
specify the statutory basis of the offense at the end of each count. Count 1 follows
that pattern, citing the conspiracy statute (§ 1349). The earlier citation to the wire
4 Regardless, any claim based on error at the sentencing phase would now be moot because Matthew has completely discharged his sentence. See Walker v. United States, 680 F.3d 1205, 1205–06 (10th Cir. 2012). 11 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 12
fraud statute (§ 1343) identifies the underlying offense the Channons conspired to
commit. Ground 1 therefore does not present a substantial question of ineffective
assistance because counsel had no meritorious motion to bring in this regard.
2. The Alleged Jury Nullification Strategy (Ground 3)
As presented to the district court, ground 3 alleged that Matthew’s counsel
should have highlighted a change to the MaxPerks terms and conditions that
OfficeMax implemented in 2010, in the middle of the Channons’ scheme (apparently
while still unaware of the scheme). Matthew claimed that highlighting this change
would have strengthened his good-faith defense, whereas his attorneys believed the
opposite. The district court rejected this claim as a non-actionable disagreement with
counsel’s trial strategy.
Matthew tells us that the district court “failed to understand that [his]
counsel’s strategy was an appeal to jury nullification.” COA Motion at 10. He cites
nothing in the record showing he accused his attorneys of pursuing a jury-
nullification strategy in district court, nor can we find any mention of jury
nullification in the record. “[A]s to issues that were not presented to the district
court, we adhere to our general rule against considering issues for the first time on
appeal.” United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). We therefore
deny a COA on this issue. 5
5 Brandi’s ground 4—her only claim that does not entirely overlap with one of Matthew’s claims—is nonetheless similar to Matthew’s ground 3. She alleges the district court failed to recognize that her own attorney’s trial strategy (as opposed to Matthew’s attorney’s trial strategy) was really an appeal to jury nullification. Again, we can find 12 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 13
3. Inadequate Challenge to Spreadsheet Evidence (Ground 12)
At trial, the government relied heavily on spreadsheets purporting to detail the
Channons’ fraudulent transactions. The Channons’ counsel objected to the
spreadsheets on various grounds, including that they were hearsay and not admissible
under the business records exception (Fed. R. Evid. 803(6)) because the government
supposedly created the spreadsheets for litigation purposes. The district court
overruled this objection, and counsel raised it again on direct appeal. We affirmed,
holding that the spreadsheets contained machine-generated non-hearsay (so no
hearsay exception was needed) and, alternatively, the spreadsheets satisfied the
business records exception. See Channon, 881 F.3d at 810–11.
In his § 2255 motion, Matthew faulted his counsel for attacking the business
records exception in the wrong way. Rather than arguing the exception does not
apply because the spreadsheets were created for litigation purposes, Matthew said
that counsel should have emphasized evidence showing “the method or circumstances
of preparation indicate a lack of trustworthiness,” Fed. R. Evid. 803(6)(E). The
district court rejected this argument as irrelevant given this court’s primary holding
that no hearsay exception was needed.
On appeal, Matthew continues to press their argument that counsel should
have emphasized Rule 803(6)(E). He says nothing about this court’s holding that the
nothing in the record showing that Brandi made this argument to the district court. Thus, even if the district court had jurisdiction to consider it, we would deny a COA on Brandi’s ground 4. 13 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 14
spreadsheets comprised non-hearsay. He therefore fails to raise any substantial
question of ineffective assistance.
4. Failure to Object to Elements Jury Instruction (Ground 14)
The trial court based its jury instruction for conspiracy to commit wire fraud
on this circuit’s pattern instruction for conspiracy to commit a controlled substance
offense, often copying that instruction verbatim where applicable. Compare Pattern
Crim. Jury Instr. 10th Cir. 2.87 with R. vol. 2 at 89–90. One of those verbatim
passages was the following, explaining the interdependence element of the
conspiracy charge:
You are also required to find that interdependence existed among the members of the conspiracy. This means that the members intended to act for their shared mutual benefit. To satisfy this element, you must conclude that the defendant participated in a shared criminal purpose and that his or her actions constituted an essential and integral step toward the realization of that purpose.
Id. at 90.
In his § 2255 motion, Matthew pointed out that the first sentence of this
passage does not begin with a qualifier, e.g., “In order to find the defendant guilty.”
Thus, it arguably reads as a command that the jury find interdependence. Matthew
faulted his counsel for not objecting on this point. The district court held, however,
that no reasonable jury reading the sentence in context would interpret the instruction
as the Channons now do.
Matthew faults the district court for failing to cite authority for what a
reasonable jury would do, but the district court had no such duty. Just as the court
14 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 15
may decide whether enough evidence exists for a reasonable jury to convict, see
Fed. R. Crim. P. 29(a), the court may decide whether a reasonable jury could have
misinterpreted a jury instruction, see, e.g., Gardner v. Galetka, 568 F.3d 862, 894
(10th Cir. 2009). We may not issue a COA on this basis.
5. Failure to Move to Dismiss Under the Speedy Trial Act (Ground 15)
Matthew argues he had a strong case to dismiss the indictment under the
Speedy Trial Act, so counsel was ineffective for failing to bring such a motion.
The Speedy Trial Act requires criminal trials to “commence within seventy
days from the filing date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1).
For Matthew, the relevant date was April 12, 2013, when he first appeared before a
judicial officer. So April 12, 2013, was “day zero” and the Speedy Trial clock began
running. See Fed. R. Crim. P. 45(a)(1)(A). The Speedy Trial clock stopped on
January 13, 2016, when jury selection began. See United States v. Arnold, 113 F.3d
1146, 1149 (10th Cir. 1997) (“For purposes of the [Speedy Trial Act], a jury trial
commences with the voir dire.”), abrogated in part on state-law grounds by State v.
Gould, 23 P.3d 801 (Kan. 2001). That makes 1,006 days.
But the Speedy Trial Act pauses the clock in various situations. Two of those
situations occurred in Matthew’s criminal proceedings:
• “delay resulting from any pretrial motion, from the filing of the motion
15 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 16
through the conclusion of the hearing on, or other prompt disposition of,
such motion,” 18 U.S.C. § 3161(h)(1)(D); and
• “[a]ny period of delay resulting from a continuance granted by any
judge on his own motion or at the request of the defendant or his
counsel or at the request of the attorney for the Government, if the judge
granted such continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial,” id. § 3161(h)(7)(A),
commonly known as an “ends-of-justice continuance” or “EOJ
continuance.”
The question is whether more than seventy Speedy Trial days elapsed, even
accounting for these tolling situations.
The court has reviewed the Channons’ criminal docket. Twenty-three Speedy
Trial days elapsed between Matthew’s arraignment on April 12, 2013 (not counting
that date) and May 5, 2013. The next day, May 6, the government filed a pretrial
motion (specifically, a motion to continue the trial, which was then set to begin May
20). So, beginning May 6, the Speedy Trial clock was suspended based on a pending
motion. 6 The district court granted that motion, rescheduled the trial to begin July
22, 2013, and granted an EOJ continuance through that date. Before the new trial
6 Despite Fed. R. Crim. P. 45(a)(1)(A), the pending-motion exception counts the day the motion was filed as day one of the tolling period, not day zero. See United States v. Margheim, 770 F.3d 1312, 1322 (10th Cir. 2014).
16 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 17
date arrived, the court granted another motion to continue, rescheduled the trial to
begin on October 21, 2013, and entered a second EOJ continuance through that date.
In a scheduling order entered August 28, 2013, the court continued the October
21 trial to January 21, 2014, but did not enter a new EOJ continuance. Thus, the
second EOJ continuance expired by its own terms on October 21. 7 No pretrial
motion was pending at that time, so the Speedy Trial clock began to run again the
next day, October 22, 2013.
The Speedy Trial clock continued to run through October 27, 2013, i.e., for six
days. On October 28, 2013, the Channons moved to continue the January trial
setting. From that date forward, an unbroken chain of pending motions and EOJ
continuances spanned the gap until trial began on January 13, 2016.
In short, the Speedy Trial clock ran for twenty-three days in one stretch, for
six days in another stretch, and was otherwise tolled—so Matthew went to trial
within seventy Speedy Trial days. He therefore has not made a substantial showing
of ineffective assistance because his counsel could not have brought a meritorious
Speedy Trial motion.
6. Failure to Subpoena OfficeMax (Ground 16)
Matthew argues that his counsel should have subpoenaed OfficeMax’s
financial records before trial so he could prove to the jury that OfficeMax profited
7 Matthew appears to believe the August 28 scheduling order restarted the Speedy Trial clock as of August 29. But the scheduling order says nothing about the then-persisting EOJ continuance. 17 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 18
from the inkjet cartridge recycling program. The district court held that counsel
reasonably chose not to seek such a subpoena because the defense had developed
information on its own suggesting that OfficeMax profited from the recycling
program and it was better to argue from that information rather than subpoenaing
OfficeMax and risking receiving data that would undercut the argument. 8
Matthew says that his counsel’s tactical decision was “ridiculous.” COA
Motion at 12. Such epithets do not raise a substantial question of the denial of a
constitutional right.
7. Failure to Pursue the “SDerClub” Defense (Ground 22)
Matthew says he bought OfficeMax store credits from an entity known as
“SDerClub,” whose website the federal government later seized and shut down,
accusing the entity of fraudulently generating those credits. Matthew’s purchases
coincided with transactions underlying counts 6 and 7 of the second superseding
indictment. Matthew encouraged his attorneys to develop a case that SDerClub was
the fraudulent actor, not him. His attorneys refused because there was other evidence
linking him to the transactions underlying counts 6 and 7, and an attempt to place
blame elsewhere would undermine the trial strategy of admitting the facts but
denying their illegality. The district court accepted this explanation as reasonable
8 Matthew’s counsel further stated that he subpoenaed OfficeMax’s records at the sentencing phase and learned that they “hurt [their] argument rather than supported it.” R. vol. 1 at 110, ¶ 13. Matthew disputes this, asserting (without citation) that the records showed a net financial gain. The dispute is immaterial because ineffective assistance must be judged “from counsel’s perspective at the time” counsel made the decision in question. Strickland, 466 U.S. at 689. 18 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 19
and also held that there was no reasonable probability this defense would have
changed the jury’s verdict.
Matthew now argues that the district court’s reasoning “ignores [his] interest
in getting counts 6 and 7 dismissed or acquitted.” COA Motion at 13. We see no
such error. In any event, this claim reduces to a disagreement about trial strategy.
“[A] court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation
marks omitted). On this record, Matthew has not raised a substantial question of
overcoming that presumption.
D. Vindictive Prosecution (Ground 13)
Finally, Matthew claims the prosecutor sought the superseding indictments
vindictively, because the Channons would not accept earlier plea deals. The district
court deemed this ground forfeited because the Channons did not raise it on direct
appeal or connect it to ineffective assistance of counsel. In support, the court cited
Sanchez-Llamas v. Oregon, 548 U.S. 331, 350–51 (2006), which states, “The general
rule in federal habeas cases is that a defendant who fails to raise a claim on direct
appeal is barred from raising the claim on collateral review.”
The district court’s disposition was procedural, without reaching the
underlying constitutional claim. In that circumstance, we may not issue a COA
unless “the prisoner shows, at least, that jurists of reason would find it debatable
19 Appellate Case: 21-2027 Document: 010110752152 Date Filed: 10/12/2022 Page: 20
whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Here, Matthew says the district court relied on Sanchez-Llamas “as some sort
of talisman against any argument outside ineffective assistance of counsel.” COA
Motion at 12. He does not explain, however, what exception to Sanchez-Llamas’s
general rule they intended to assert. Thus, he has not made a substantial showing that
the district court erred in imposing a procedural bar to this claim.
IV. CONCLUSION
Matthew’s petition does not meet the COA standard and the district court
lacked jurisdiction over Brandi’s § 2255 motion, so we deny a COA as to both. We
grant their motions to proceed without prepayment of costs and fees. Regarding their
motions to supplement the record, we deny them as moot to the extent they duplicate
this court’s sua sponte orders to supplement the record, and otherwise deny them as
unnecessary to resolve this proceeding. Finally, we deny as moot their motions to
disqualify Judge Tymkovich and Judge Kelly. Judge Tymkovich is automatically
recused from this case and Judge Kelly was not assigned to this panel, nor did he
participate in this proceeding informally.
Entered for the Court Per Curiam