Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 8, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-6005 (D.C. Nos. 5:20-CV-01050-D & JACKIE DUNCAN, 5:14-CR-00305-D-1) (W.D. Okla.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, KELLY, and HOLMES, Circuit Judges. _______________________________
Jackie Duncan, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence.1 Exercising jurisdiction under 28 U.S.C. §
1291, we deny the request for a COA and dismiss this matter.
I. BACKGROUND
A jury convicted Duncan of (1) interference with commerce by robbery (two
counts), 18 U.S.C. § 1951(a); (2) conspiracy to interfere with commerce by robbery, id.;
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We liberally construe Duncan’s pro se application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002). Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 2
(3) possessing (brandishing) a firearm in furtherance of a crime of violence (two counts),
18 U.S.C. § 924(c)(1)(A); and (4) being a convicted felon in possession of a firearm, 18
U.S.C. § 922(g)(1). He was sentenced to 386 months in prison. This court affirmed the
convictions on appeal. See United States v. Duncan, 766 F. App’x 604, 606 (10th Cir.
2019).
Duncan’s § 2255 motion raised several claims that his counsel provided
ineffective assistance before and during the trial. The district court denied Duncan’s
motion and declined to issue a COA, concluding that the claims were without merit and
an evidentiary hearing was not warranted. He seeks a COA on some of these claims.
II. CERTIFICATE OF APPEALABILITY
To appeal the denial of relief under § 2255, a prisoner must receive a COA. See
28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from . . . the final order
in a proceeding under section 2255.”). “We may grant a COA only if the petitioner
makes a ‘substantial showing of the denial of a constitutional right.’” Milton v. Miller,
812 F.3d 1252, 1263 (10th Cir. 2016) (quoting § 2253(c)(2)). “To obtain a COA after a
district court has rejected a petitioner’s constitutional claims on the merits, the petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the . . . constitutional claims debatable or wrong.” Id. (internal quotation marks omitted);
see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (petitioner is required to show
“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
2 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 3
adequate to deserve encouragement to proceed further” (internal quotation marks
omitted)).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance, Duncan must show both that
counsel’s performance was constitutionally deficient, and that the constitutionally
deficient performance resulted in prejudice. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Under the first prong, Duncan must demonstrate that the errors were so
serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id.; see Wilson v. Sirmons, 536 F.3d 1064, 1083 (10th Cir. 2008)
(“Counsel’s performance must be completely unreasonable to be constitutionally
ineffective, not merely wrong.” (internal quotation marks omitted)). “Judicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689. There is
“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.” Id.
(internal quotation marks omitted).
Under the second prong, Duncan must “affirmatively prove prejudice.” Id. at 693.
To meet this burden, he is required to demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “[M]ere speculation is not sufficient to satisfy [the petitioner’s]
burden.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).
3 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 4
“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
IV. DISCUSSION
One claim on which Duncan seeks a COA is that his trial counsel’s improper
advice caused him to go to trial rather than plead guilty. But we will not consider this
claim because it was not raised in district court. “[If an] argument was not raised in [an
appellant’s] habeas petition, it is waived on appeal.” Owens v. Trammell, 792 F.3d 1234,
1246 (10th Cir. 2015).
Two other claims raised by Duncan concern his right to a speedy trial. “Under the
[Speedy Trial] Act, a federal criminal trial must begin within seventy days of the filing of
the indictment or from the date of the defendant’s initial appearance, whichever occurs
later.” United States v. Margheim, 770 F.3d 1312, 1318 (10th Cir. 2014) (citing 18
U.S.C. § 3161(c)(1)). “Several enumerated events are excluded from the statute’s
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Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 8, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-6005 (D.C. Nos. 5:20-CV-01050-D & JACKIE DUNCAN, 5:14-CR-00305-D-1) (W.D. Okla.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, KELLY, and HOLMES, Circuit Judges. _______________________________
Jackie Duncan, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence.1 Exercising jurisdiction under 28 U.S.C. §
1291, we deny the request for a COA and dismiss this matter.
I. BACKGROUND
A jury convicted Duncan of (1) interference with commerce by robbery (two
counts), 18 U.S.C. § 1951(a); (2) conspiracy to interfere with commerce by robbery, id.;
* 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. 1 We liberally construe Duncan’s pro se application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002). Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 2
(3) possessing (brandishing) a firearm in furtherance of a crime of violence (two counts),
18 U.S.C. § 924(c)(1)(A); and (4) being a convicted felon in possession of a firearm, 18
U.S.C. § 922(g)(1). He was sentenced to 386 months in prison. This court affirmed the
convictions on appeal. See United States v. Duncan, 766 F. App’x 604, 606 (10th Cir.
2019).
Duncan’s § 2255 motion raised several claims that his counsel provided
ineffective assistance before and during the trial. The district court denied Duncan’s
motion and declined to issue a COA, concluding that the claims were without merit and
an evidentiary hearing was not warranted. He seeks a COA on some of these claims.
II. CERTIFICATE OF APPEALABILITY
To appeal the denial of relief under § 2255, a prisoner must receive a COA. See
28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from . . . the final order
in a proceeding under section 2255.”). “We may grant a COA only if the petitioner
makes a ‘substantial showing of the denial of a constitutional right.’” Milton v. Miller,
812 F.3d 1252, 1263 (10th Cir. 2016) (quoting § 2253(c)(2)). “To obtain a COA after a
district court has rejected a petitioner’s constitutional claims on the merits, the petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the . . . constitutional claims debatable or wrong.” Id. (internal quotation marks omitted);
see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (petitioner is required to show
“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
2 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 3
adequate to deserve encouragement to proceed further” (internal quotation marks
omitted)).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance, Duncan must show both that
counsel’s performance was constitutionally deficient, and that the constitutionally
deficient performance resulted in prejudice. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Under the first prong, Duncan must demonstrate that the errors were so
serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id.; see Wilson v. Sirmons, 536 F.3d 1064, 1083 (10th Cir. 2008)
(“Counsel’s performance must be completely unreasonable to be constitutionally
ineffective, not merely wrong.” (internal quotation marks omitted)). “Judicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689. There is
“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.” Id.
(internal quotation marks omitted).
Under the second prong, Duncan must “affirmatively prove prejudice.” Id. at 693.
To meet this burden, he is required to demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “[M]ere speculation is not sufficient to satisfy [the petitioner’s]
burden.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).
3 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 4
“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
IV. DISCUSSION
One claim on which Duncan seeks a COA is that his trial counsel’s improper
advice caused him to go to trial rather than plead guilty. But we will not consider this
claim because it was not raised in district court. “[If an] argument was not raised in [an
appellant’s] habeas petition, it is waived on appeal.” Owens v. Trammell, 792 F.3d 1234,
1246 (10th Cir. 2015).
Two other claims raised by Duncan concern his right to a speedy trial. “Under the
[Speedy Trial] Act, a federal criminal trial must begin within seventy days of the filing of
the indictment or from the date of the defendant’s initial appearance, whichever occurs
later.” United States v. Margheim, 770 F.3d 1312, 1318 (10th Cir. 2014) (citing 18
U.S.C. § 3161(c)(1)). “Several enumerated events are excluded from the statute’s
prescribed seventy-day period, thus tolling the speedy-trial clock.” Id. (internal quotation
marks omitted). One of those enumerated events is the filing of a pretrial motion (such as
a motion to suppress evidence), which tolls the 70-day period from the date of filing until
the conclusion of the suppression hearing or other prompt disposition of the motion. See
18 U.S.C. § 3161(h)(1)(D). Also excluded is any period of delay resulting from a
continuance granted based on the judge’s findings that the ends of justice outweigh the
defendant’s interests in a speedy trial. See id. § 3161(h)(7)(A).
4 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 5
Duncan’s 70-day period began on November 10, 2014, when he was arraigned.
But that period was tolled starting on December 8, 2014, after 28 days had elapsed, when
he filed a motion to suppress. A hearing on the motion was conducted on January 6,
2015. That same day, one week before trial was set to begin, the government filed a
superseding indictment that added a new charge against Duncan. The following day,
Duncan’s trial counsel filed an unopposed motion to continue the trial to the February
trial docket. Counsel said that he could not “adequately investigate the case and provide
Mr. Duncan with sound legal advice given the current schedule with the addition of the
new charge in Count 1 of the Superseding Indictment.” Suppl. R. at 36. The court
granted the motion, determining that delay was necessary to give defense counsel
reasonable time for effective preparation and that the ends of justice served by the delay
outweighed the interests in a speedy trial. The trial was later continued until March 2015.
According to Duncan, the initial motion was filed over his objection and his attorney was
ineffective for filing the motion. Also, he contends that since his right to a speedy trial
was violated as a result of the two continuances, his attorney was ineffective for failing to
move to dismiss the indictment because of the violation.
The district court denied relief on the continuance claim. No reasonable jurist
could debate that determination. Not only was the motion to continue eminently
reasonable, but Duncan points to no resulting prejudice. Moreover, the motion to
continue did not result in a violation of the Speedy Trial Act. Only 28 days on the 70-day
speedy-trial clock had elapsed by January 7, 2015, when the trial court granted Duncan’s
motion to continue. And the court’s finding that the continuance served the ends of
5 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 6
justice further tolled the clock until mid-February when the trial was rescheduled to
begin. The March trial was well within the statutory time limit. Thus, Duncan was not
denied effective assistance of counsel by the motion to continue or by the failure to move
to dismiss because of violation of the Speedy Trial Act.
Any claim of a violation of the Sixth Amendment right to a speedy trial would
also have been meritless. For there to be a violation of the right, the delay must be
presumptively prejudicial. See United States v. Frias, 893 F.3d 1268, 1272 (10th Cir.
2018). To be presumptively prejudicial, the delay must approach one year. See id.
Duncan’s right to a speedy trial attached on October 22, 2014, the date the indictment
was filed. Trial began on March 10, 2015—139 days later. Because the delay was far
less than one year, the district court ruled that it was not presumptively prejudicial.
Failure to move to dismiss for violation of the right to a speedy trial did not constitute
ineffective assistance of counsel. We deny a COA because reasonable jurists could not
debate the district court’s resolution of this claim.
Finally, Duncan claims that his attorney was ineffective for not seeking a James
hearing. See United States v. James, 590 F.2d 575 (5th Cir. 1979). The purpose of a
James hearing is to determine the admissibility of proffered co-conspirator hearsay
statements. But co-conspirator hearsay statements were apparently not at issue at trial.
The district court denied this claim for lack of prejudice, noting that Duncan failed to
identify a single co-conspirator statement admitted by the Court, nor does he point to any testimony at trial that should not have been admitted. Therefore, [Duncan] has not met his burden to show he was prejudiced by any error of his counsel in regard to co-conspirator statements that would undermine the confidence in the outcome of the trial.
6 Appellate Case: 22-6005 Document: 010110735607 Date Filed: 09/08/2022 Page: 7
R., Vol. 5 at 143. Because reasonable jurists could not debate the court’s resolution of
this claim, we deny a COA.
V. CONCLUSION
We deny Duncan’s request for a COA and dismiss this matter.
Entered for the Court
Harris L Hartz Circuit Judge