United States v. Christian

Opinion

Appellate Case: 22-6016 Document: 010110680815 Date Filed: 05/06/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 6, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-6016 (D.C. Nos. 5:19-CV-00975-R & JAMES CORNELIUS CHRISTIAN, 5:17-CR-00068-R-1) (W.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

James Cornelius Christian, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) from the district court’s denial of his motion to

reopen his 28 U.S.C. § 2255 proceedings. The district court construed the motion as

an unauthorized second or successive § 2255 motion and dismissed it for lack of

jurisdiction. We deny a COA and dismiss this matter.

I. BACKGROUND & PROCEDURAL HISTORY

In 2017, a federal grand jury in the Western District of Oklahoma indicted

Mr. Christian on two counts of being a felon in possession of a firearm. He went to

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-6016 Document: 010110680815 Date Filed: 05/06/2022 Page: 2

trial, primarily arguing an entrapment defense because a government informant had

allegedly plied him with sex and drugs to help her sell at least one of the guns he was

charged with possessing. In a general verdict, the jury acquitted on the first count

but convicted on the second. The district court then sentenced him to 235 months,

which was the low end of the advisory guidelines range, given Mr. Christian’s

criminal history.

On direct appeal, Mr. Christian argued: (i) the jury must have agreed with his

entrapment defense as to the first count, and (ii) the government could never have

developed evidence for the second count but for the actions that supported the first

count, therefore (iii) all evidence supporting the second count should have been

excluded. See United States v. Christian, 754 F. App’x 747, 750 (10th Cir. 2018).

This court rejected the argument because the jury gave a general verdict (so it was

not clear the jury agreed with the entrapment defense) and, regardless, there is no

exclusionary rule for evidence gained through conduct later deemed to be

entrapment. See id.

Mr. Christian then filed a § 2255 motion. He argued that the government

violated various constitutional guarantees by employing a confidential informant

who, in turn, used sex and drugs to persuade him to participate in selling guns. The

district court denied the motion, finding that Mr. Christian raised these arguments, or

could have raised them, on direct appeal. This court denied a COA. See United

States v. Christian, 816 F. App’x 304 (10th Cir. 2020).

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Finally, in January 2022, Mr. Christian filed a motion captioned “Motion to

Reopen 28 U.S.C. § 2255 Pursuant to Rule 15(c)(2)(b) Federal Rules of Civil

Procedure - Relation Back Doctrine.” R. vol. II at 402 (capitalization normalized).

The first line of that motion further invoked “Rule 60(b)(1)(2)(3)(4)(5) and (6),” id.,

and the substance of the motion focused on showing why all forms of Rule 60(b)

relief are appropriate means of vacating his conviction and releasing him, given the

confidential informant’s behavior and the government’s reliance upon her. He also

argued that circumstances in prison unfairly prevented him from filing a reply brief

in support of his original § 2255 motion.

The district court treated Mr. Christian’s argument about his reply brief as a

legitimate Rule 60(b) argument and denied relief on the merits, reasoning he had

waited too long to raise the issue. The district court deemed Mr. Christian’s other

arguments to constitute, in substance, an unauthorized second or successive § 2255

motion. See 28 U.S.C. § 2255(h). It accordingly dismissed those portions of his

motion for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)

(per curiam). The district court also denied a COA.

II. ANALYSIS

Mr. Christian’s notice of appeal and COA application do not mention the

district court’s denial of Rule 60(b) relief as to the reply brief he never had a chance

to file. Accordingly, we deem him to have abandoned that issue, see, e.g., Johnson v.

Spencer, 950 F.3d 680, 703 n.7 (10th Cir. 2020), and we focus on the claims the

district court dismissed for lack of jurisdiction.

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To merit a COA, Mr. Christian must “ma[ke] a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 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). And he must make an extra showing in this circumstance because the district

court denied his motion on a procedural ground, namely, lack of jurisdiction. So he

must also show that “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id.

“[W]e look at the relief sought, rather than a pleading’s title or its form, to

determine whether it is a second-or-successive collateral attack on a defendant’s

conviction.” United States v. Baker, 718 F.3d 1204, 1208 (10th Cir. 2013). If a

pleading “asserts or reasserts claims of error in the prisoner’s [federal] conviction,” it

is substantively a § 2255 motion. Id. at 1206. Mr. Christian’s motion unquestionably

fits this description. The district court therefore correctly dismissed Mr. Christian’s

motion for lack of jurisdiction. Jurists of reason could not disagree with the district

court’s procedural disposition, so we may not grant a COA. See Slack, 529 U.S.

at 484.

III. CONCLUSION

We deny Mr. Christian’s application for a COA and dismiss this matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk 4