FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 23, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3266 (D.C. Nos. 6:17-CV-01011-JTM & PEDRO C. GARCIA, 6:12-CR-10089-JTM-2) (D. Kan.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT _________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. _________________________________
In 2013, a jury convicted Pedro C. Garcia of conspiring with other members of a
criminal gang to violate the Racketeer Influenced and Corrupt Organizations Act (RICO);
committing various violent crimes, including murder in violation of Kansas law, in aid of
racketeering; and two counts of possessing and brandishing or discharging a firearm in
furtherance of crimes of violence (murder and aggravated robbery), in violation of
18 U.S.C. § 924(c)(1)(A). In 2014, the district court sentenced him to life imprisonment
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. plus a mandatory, consecutive term of 32 years for the § 924(c)(1)(A) violations. This
court affirmed, see United States v. Garcia, 793 F.3d 1194, 1199 (10th Cir. 2015), and
the Supreme Court denied review, Garcia v. United States, 136 S. Ct. 860 (2016).
Within one year of the date on which Garcia’s conviction became final, he filed a
pro se motion for postconviction relief under 28 U.S.C. § 2255.1 The district court
denied the motion and Garcia’s motion to alter or amend its judgment, but it granted a
certificate of appealability (COA) on one issue—whether “the court’s murder instruction
[relating to Garcia’s Count 6 conviction] was erroneous under Johnson [v. United States,
135 S. Ct. 2551 (2015)]” (Johnson II). R., Vol. II at 257. Still pro se, Garcia has filed a
combined COA application and opening brief, seeking to expand the COA to include two
other issues: (1) the district erred in determining that his “challenge as to Count 9
[regarding his § 924(c)(1)(A) conviction] (and Count 6) was procedurally defaulted
because that challenge was based on Johnson [II]”; and (2) the denial of relief on his
“due process claim that the prosecutor committed misconduct is for[e]closed.” Opening
1 Section 2255(f) provides a one-year limitations period for § 2255 motions. One way to measure that period is from “the date on which the judgment of conviction becam[e] final.” § 2255(f)(1). Garcia’s conviction became final when the Supreme Court denied his petition for a writ of certiorari on January 11, 2016. See United States v. Prows, 448 F.3d 1223, 1227 (10th Cir. 2006) (“In the context of the one-year limitation period for filing a § 2255 motion, a criminal conviction becomes final when the Supreme Court affirms it on direct review, denies certiorari, or (in the absence of a certiorari petition) the time for filing a certiorari petition expires.”). Garcia’s § 2255 motion bears a district-court file stamp dated January 13, 2017, which is beyond the (f)(1) period, but under the prison-mailbox rule, we conclude that his motion was timely under § 2255(f)(1). See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005) (explaining parameter of prison-mailbox rule).
2 Br. at 2 (most capitalization omitted). He also seeks leave to proceed without
prepayment of costs and fees (IFP). Construing Garcia’s pro se filings liberally, but
without acting as his advocate, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008), we (1) affirm the denial of relief on the Count 6 murder-instruction issue; (2) grant
a COA on his Count 9 claim, reverse the denial of relief on that claim, and remand for
further proceedings; and (3) deny a COA on his prosecutorial-misconduct claim. We also
grant IFP.
I. Issue on which COA was granted
A. District court proceedings concerning Count 6
Count 6 of the indictment charged Garcia with possessing and discharging a
firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).
The district court instructed the jury that the predicate crime charged in Count 6,
first-degree murder in violation of Kan. Stat. Ann. § 21-5402, “is a crime of violence.”
Supp. R., Vol. 1 at 59. For purposes of § 924(c)(1)(A), a “crime of violence” is “an
offense that is a felony” that “(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of another” or “(B) that by its nature,
involves a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.” § 924(c)(3). We refer to
§ 924(c)(3)(A) as the “elements” clause (Garcia calls it the “force” clause), and to
§ 924(c)(3)(B) as the “residual clause.”
While Garcia’s direct appeal was pending, the Supreme Court decided Johnson II,
holding unconstitutionally vague a similar residual clause in the definition of “violent
3 felony” in the Armed Career Criminal Act (ACCA)—“any crime punishable by
imprisonment for a term exceeding one year . . . that . . . otherwise involves conduct that
presents a serious potential risk of physical injury to another,” 18 U.S.C.
§ 924(e)(2)(B)(ii). 135 S. Ct. at 2557.
In his § 2255 motion, Garcia’s entire argument regarding the Count 6 instruction
was: “Per the holding in Johnson murder is not categorically a ‘crime of violence’ within
the meaning of § 924(c)(3)(B) since physical force is not required to be held accountable
for the offense of murder.” R., Vol. II at 141. The district court decided the claim was
procedurally defaulted because Garcia did not present good cause for failing to raise it on
direct appeal. In the alternative, the court determined the claim had no merit. The court
concluded Garcia failed to show how the crime charged was not a crime of violence
because Kan. Stat. Ann. § 21-5402(a)(1) “defines murder in the first degree as a killing of
a human being intentionally and with premeditation,” and the jury had returned a special
verdict finding Garcia had committed first degree murder. R., Vol. II at 211.
B. Standard of review
The district court did not hold an evidentiary hearing where it made findings, so
our review is de novo. See United States v. Copeland, 921 F.3d 1233, 1242 (10th Cir.
2019).
C. Discussion
In his opening appellate brief, Garcia contends that Kansas first degree murder
cannot qualify as a crime of violence under § 924(c)(3)’s residual clause because that
clause is unconstitutionally vague under the reasoning of Johnson II. He also argues the
4 murder instruction was erroneous because the term “physical force” as used in
§ 924(c)(3)’s elements clause means “violent force” under the reasoning of Johnson v.
United States, 559 U.S. 133 (2010) (Johnson I). In Johnson I, the Supreme Court
construed the ACCA’s elements clause, § 924(e)(2)(B)(i), which defines a “violent
felony” as a felony that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” The Court held that in defining “violent
felony,” “the phrase ‘physical force’ means violent force—that is, force capable of
causing physical pain or injury to another person.” Johnson I, 559 U.S. at 140.
Relying on Johnson I’s holding, Garcia argues that first degree murder under Kan.
Stat. Ann. § 21-5402(a) does not require any “violent force” at all because it can be
committed by poisoning, and under controlling case law at the time of his sentencing,
murder by poisoning did not require violent physical force. In his reply brief, Garcia
clarifies that the “essence” of his claim concerning Count 6 is that his murder conviction
could only qualify as a crime of violence under the residual clause because it does not
require the use of physical force necessary to satisfy the elements clause, and the residual
clause is unconstitutionally vague under Johnson II and our decision in United States v.
Salas, 889 F.3d 681 (10th Cir. 2018), cert. denied, 139 S. Ct. 2773 (2019).2 In Salas, we
held that § 924(c)(3)’s residual clause is unconstitutional under Sessions v. Dimaya,
138 S. Ct. 1204, 1213-16 (2018), where the Supreme Court extended Johnson II’s
2 We decided Salas after Garcia filed his opening brief in this appeal.
5 reasoning to hold that a similarly worded clause in the definition of “violent felony” in
18 U.S.C. § 16(b) was unconstitutionally vague. Salas, 889 F.3d at 684–86.
The government advances a number of procedural reasons why we should not
entertain the merits of this argument, but we need not sort those out because none are
jurisdictional and it’s clear the argument loses on the merits. See Brown v. Sirmons,
515 F.3d 1072, 1092-93 (10th Cir. 2008) (holding that for efficiency, we can avoid
questions of procedural bar if it is easier to rule on the merits); Proctor & Gamble Co. v.
Haugen, 222 F.3d 1262, 1271 (10th Cir. 2000) (noting this court’s discretion to depart
from general rule that we do not consider matters not raised or argued in the district court
“[w]here the issue is purely a matter of law and its proper resolution is certain” (ellipses
and internal quotation marks omitted)).
Our merits analysis proceeds from the observation that in United States v. Davis,
139 S. Ct. 2319, 2336 (2019), the Supreme Court confirmed what Salas held—that like
the ACCA residual clause at issue in Johnson II, § 924(c)(3)’s residual clause,
“§ 924(c)(3)(B)[,] is unconstitutionally vague.”3 And we have said that “in striking down
§ 924(c)(3)(B) as void for vagueness, Davis created a new constitutional rule,” United
States v. Bowen, 936 F.3d 1091, 1098 (10th Cir. 2019), that is “retroactively applicable to
cases on collateral review,” id. at 1100. Further, we will assume, for the sake of
argument, that Garcia’s § 924(c)(1)(A) conviction rested on the residual clause. See
Bowen, 936 F.3d at 1108-09 (examining whether conviction “rested on § 924(c)(3)’s
3 The Supreme Court decided Davis after the parties in this appeal completed their briefing. 6 residual clause” in order to determine if district court’s reliance on that clause was
harmless in light of fact that conviction did not categorically qualify under elements
clause). Based on that assumption, we conclude that the district court erred in relying on
the residual clause because Garcia’s “conviction was imposed under an invalid—indeed,
unconstitutional—legal theory, and that [he] was, therefore, convicted in violation of the
Constitution.” Id. at 1108 (brackets and internal quotation marks omitted).
We now must determine if the error in the jury instruction was harmless by
considering whether it “‘had a substantial and injurious effect or influence in determining
the jury’s verdict.’” Id. at 1109 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)). Davis harmless-error review requires us to look at whether Garcia’s murder
conviction would qualify as a crime of violence under the elements clause based on the
current state of the law, not on what the law was at the time of sentencing. See United
States v. Lewis, 904 F.3d 867, 873 (10th Cir. 2018) (“We apply current law . . . because
Johnson [II] harmless error review goes to the question of remedies . . . .”).
The Kansas first-degree-murder statute provides: “(a) Murder in the first degree is
the killing of a human being committed: (1) Intentionally, and with premeditation; or
(2) in the commission of, attempt to commit, or flight from any inherently dangerous
felony.” Kan. Stat. Ann. § 21-5402(a).4 Garcia argues this statute does not qualify as a
4 The parties debate whether § 21-5402(a) is a divisible statute and whether we should apply the categorical or the modified-categorical approach to determine if Garcia’s murder conviction qualifies as a crime of violence under § 924(c)(3)’s elements clause. We need not resolve this debate because Garcia’s argument fails under either approach. But we note (without deciding) that the statute itself strongly indicates it is not divisible. See § 21-5402(d) (“Murder in the first degree as defined in subsection (a)(2) is 7 crime of violence under the elements clause in § 924(c)(3)(A) because first-degree
murder can be accomplished by poisoning, which does not require the use of violent
physical force.
We disagree. In two recent cases we have definitively rejected the argument that
poisoning does not require the use of violent physical force. In United States v.
Ontiveros, 875 F.3d 533, 536-38 (10th Cir. 2017), we explained that the Supreme Court’s
decision in United States v. Castleman, 572 U.S. 157 (2014), fatally undermined
contrary, earlier Tenth Circuit precedent on this point, including a case Garcia relies on
here, United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008). See also
United States v. McCranie, 889 F.3d 677, 679 (10th Cir. 2018) (recognizing that
Ontiveros “overruled” Rodriguez-Enriquez based on Castleman), cert. denied, 139 S. Ct.
1260 (2019). Although Ontiveros concerned whether the “use of physical force”
rendered an offense a crime of violence under U.S.S.G. § 4B1.1(a), see 875 F.3d at 535,
we extended Ontiveros’s reasoning to § 924(c)(3)(A) in United States v.
Melgar-Cabrera, 892 F.3d 1053, 1066 (10th Cir.), cert. denied, 139 S. Ct. 494 (2018).
To the extent Garcia relies on dictum in Rummel v. Estelle, 445 U.S. 263 (1980), it is not
controlling in light of Castleman.5
an alternative method of proving murder in the first degree and is not a separate crime from murder in the first degree as defined in subsection (a)(1).”); see also Mathis v. United States, 136 S. Ct. 2243, 2256 (2016) (“[A] statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).”). 5 The Rummel dictum Garcia points to is a comment that “Caesar’s death at the hands of Brutus and his fellow conspirators was undoubtedly violent; the death of Hamlet’s father at the hands of his brother, Claudius, by poison, was not.” Rummel, 8 Because Garcia has failed to show that first-degree murder in violation of Kan.
Stat. Ann. § 5402(a) is not a crime of violence as defined in § 924(c)(3)(A)’s elements
clause, any error by the district court in relying on § 924(c)(3)(B)’s residual clause,
recognized as unconstitutionally vague in Davis and Salas, was harmless under Brecht.
We therefore affirm the district court’s denial of § 2255 relief on Garcia’s
jury-instruction issue.
II. Issues on which COA was not granted
Garcia seeks a COA on two additional issues. See 28 U.S.C. § 2253(c)(1)(B)
(requiring COA to appeal final order in a § 2255 proceeding). Those issues are whether
(1) his “challenge as to Count 9 (and Count 6) was procedurally defaulted because that
challenge was based on Johnson [II]”; and (2) his “due process claim that the prosecutor
committed misconduct is for[e]closed.” Opening Br. at 2 (typeface altered).
A COA may issue “only if the [petitioner] has made a substantial showing of the
denial of a constitutional right.” § 2253(c)(2). The district court held that these two
issues were procedurally defaulted. Therefore, to obtain a COA, Garcia must show “that
jurists of reason would find it debatable whether [those grounds] state[] a valid claim of
the denial of a constitutional right and . . . whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA inquiry . . .
is not coextensive with a merits analysis,” and should be conducted “without full
445 U.S. at 282 n.27 (emphasis added). The majority opinion made this comment in rejecting the dissenting opinion’s view that there are objective standards for imposing more severe penalties if a crime involves violence. 9 consideration of the factual or legal bases adduced in support of the claims.” Buck v.
Davis, 137 S. Ct. 759, 773 (2017) (internal quotation marks omitted).
A. Johnson II challenge to Count 96
The jury convicted Garcia of Count 9, possessing and brandishing a firearm in
furtherance of a crime of violence in violation of § 924(c)(1)(A). Count 9 charged that
Garcia
did knowingly possess firearms and brandish firearms, in furtherance of a crime of violence for which [he] may be prosecuted in a court of the United States, to wit: 18 U.S.C. §1951 and 18 U.S.C. §1959, referencing Aggravated Robbery, in violation of Kan. Stat. Ann. §21-5420(b)(1) (formerly §21-3427). In violation of Title 18, United States Code, 924(c)(1)(A) and Section 2. R., Vol. II at 61-62.7 The district court instructed the jury that to convict Garcia on
Count 9, it had to find he “committed the crime of aggravated robbery as charged in
count 9 of the indictment, which is a crime of violence.” Supp. R., Vol. 1 at 60
(emphasis added).
In his § 2255 motion, Garcia made two arguments regarding Count 9:
(1) § 924(c)(1)(A) applies only where the predicate “crime of violence” is one for which
6 Garcia’s request for a COA on this issue also challenges the district court’s application of procedural default to Count 6. Because we have overlooked procedural default on the Count 6 issue and affirmed the denial of relief on the merits, we confine our analysis here to Count 9. 7 Section 1951 is Hobbs Act robbery, and § 1959 is the VICAR (violent crimes in aid of racketeering) statute, which punishes certain types of crimes committed in aid of a racketeering activity, see § 1959(a). The indictment contained no separate counts of either Hobbs Act robbery or Kansas aggravated robbery. 10 a “person may be prosecuted in a court of the United States,” § 924(c)(1)(A), but Kansas
aggravated robbery is not prosecutable in federal court; and (2) Kansas aggravated
robbery “is not categorically a ‘crime of violence’ within the meaning of § 924(c)(3)(B)
per the holding in Johnson [II],” R., Vol. II at 141. The district court addressed only the
first of these two arguments, concluding it was procedurally defaulted because Garcia
could have raised it at trial or on direct appeal. Id. at 210. In the alternative, the court
determined the argument lacked merit. The court did not address the Johnson II
component of Garcia’s argument regarding Count 9, yet it treated the entirety of the
Count 9 argument as procedurally defaulted and did not provide an alternative merits
analysis of the Johnson II challenge.
In seeking a COA on this issue, Garcia contests only the district court’s
application of procedural bar to the Johnson II part of this issue, faulting the district court
for not actually examining whether that part was procedurally barred. He claims that if
the court had applied Johnson II, it would have found that aggravated robbery under Kan.
Stat. Ann. § 5420(b)(1) “is not a crime of violence under 18 U.S.C. § 924(c) after
Johnson [II].” Aplt. Opening Br. at 7.8 The thrust of Garcia’s appellate argument is that
8 Garcia makes two other arguments based on Count 9’s reference to Hobbs Act robbery and § 1959: “Hobbs Act Robbery is not a crime of violence under . . . § 924(c),” and “a violation of 18 U.S.C. § 1959(4) . . . is also not a ‘crime of violence[’] under . . . § 924(c).” Aplt. Opening Br. at 7. We need not address these arguments because it appears neither Hobbs Act robbery nor § 1959 was the basis for the § 924(c)(1)(A) conviction. As noted, the jury was instructed that to convict Garcia on Count 9, it had to find he committed “aggravated robbery.” Supp. R., Vol. 1 at 60. And at the jury-instruction conference, the government commented that “the violent crime [in Count 9] was plead as an aggravated robbery, a state aggravated robbery.” Id., Vol. 2 at 47 (emphasis added). 11 if § 924(c)(3)’s residual clause is void for vagueness and his conviction for Kansas
aggravated robbery is not a crime of violence under § 924(c)(3)’s elements clause, then
his Count 9 conviction was based on an act that is not a crime of violence within the
meaning of § 924(c)(1)(A). Because Davis has now confirmed that § 924(c)(3)’s residual
clause is unconstitutionally vague, we can restate Garcia’s argument as follows: His
Count 9 conviction is valid only if, at the time he was convicted, Kansas aggravated
robbery was a crime of violence under § 924(c)(3)’s elements clause.
We think reasonable jurists could debate whether the district court’s procedural
ruling was wrong and whether Garcia has a facially valid claim of the denial of a
constitutional right. We therefore grant a COA on this issue and undertake full
consideration of whether Garcia can overcome procedural default of the Johnson II part
of his Count 9 claim.
1. Procedural default
“Where a defendant has procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either cause and actual prejudice, or that he is actually innocent.” United
States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (internal quotation marks
omitted). We address cause and prejudice in turn, and because we conclude there is
cause and prejudice here, we need not consider actual innocence.
a. Cause
Cause excusing procedural default exists where a claim “is so novel that its legal
basis was not reasonably available to counsel at the time of the direct appeal.” United
12 States v. Snyder, 871 F.3d 1122, 1127 (10th Cir. 2017) (brackets and internal quotation
marks omitted)). And we have said that a Johnson II claim regarding ACCA’s residual
clause is such a claim. Id. As Garcia points out, Johnson II was decided only eighteen
days before this court issued its decision in his direct appeal. He could have filed a notice
of supplemental authority in his direct appeal, but that would have required broaching a
whole new issue that he did not first present to the district court, and it was then
questionable whether Johnson II’s holding that ACCA’s residual clause was
unconstitutionally vague extended to other similar residual clauses. Based on the timing
here, it would be unfair to conclude Garcia should have raised his Johnson II issue
regarding Count 9 as part of his direct appeal, let alone at trial. Our conclusion is
buttressed by the fact that the source of the constitutional principle relevant to
§ 924(c)(3)’s residual clause is not found in Johnson II but in Davis, see 139 S. Ct.
at 2336 (holding that § 924(c)(3)’s residual clause, “§ 924(c)(3)(B)[,] is
unconstitutionally vague”), which was decided well after Garcia’s direct appeal was final.
Indeed, given that it is Davis that cements the viability of Garcia’s legal theory, which we
earlier endorsed in Salas, there is cause to excuse Garcia from not raising this claim at
trial or on direct appeal.
We find unpersuasive the government’s argument that this is just a Johnson I
claim Garcia could have raised at trial or on direct appeal. As Garcia points out, this
claim relies not only on Johnson I but on an extension of Johnson II to § 924(c)(3)(B),
because to obtain relief, he must show that the predicate crime for the Count 9 conviction
does not qualify as a crime of violence under § 924(c)(3)’s elements clause or its residual
13 clause. Absent Johnson II, and now Davis, a Johnson I argument on direct appeal would
have failed to show that the predicate crime did not qualify under the residual clause,
which was then a novel legal theory.
b. Prejudice
We also conclude Garcia would be prejudiced if procedural default bars him from
raising his Count 9 issue in his § 2255 motion. Prejudice exists where the alleged error is
one “of constitutional dimensions that worked to [a defendant’s] actual and substantial
disadvantage.” Snyder, 871 F.3d at 1128 (internal quotation marks omitted). If Garcia is
correct that Kansas aggravated robbery was not a crime of violence within § 924(c)(3)’s
elements clause at the time of his conviction, and given that Davis’s holding (that
§ 924(c)(3)’s residual clause is unconstitutional) is retroactively applicable to cases on
collateral review per Bowen, 936 F.3d at 1100, then Garcia’s Count 9 conviction was
“not authorized by law,” which “is certainly an actual and substantial disadvantage of
constitutional dimensions,” Snyder, 871 F.3d at 1128 (internal quotation marks omitted).
The assumption in the preceding sentence—that Kansas aggravated robbery was
not a crime of violence within the elements clause at the time Garcia was convicted—
implicates a number of cases decided during the pendency of this appeal or not addressed
in the district court. And testing the truth of the assumption is intertwined with a merits
analysis. In the district court, neither the government nor the court addressed the merits
of this issue, and the government does not address them on appeal. Rather than seek
additional briefing from the parties and decide this issue in the first instance ourselves,
we think the better course is to remand to the district court for full development and
14 consideration of the issue, including, if necessary, additional briefing from the parties on
how (if at all) the recent developments in the law bear on the issue. Those recent
developments include, without limitation, the Supreme Court’s decisions in Davis and
Stokeling v. United States, 139 S. Ct. 544 (2019), and a number of our decisions,
including, but not limited to, Bowen, United States v. Driscoll, 892 F.3d 1127, 1135
(10th Cir. 2018) (explaining that at the merits stage of a first § 2255 motion, a movant
“must prove that the sentencing court, more likely than not, relied on the residual
clause”), and United States v. Bong, 913 F.3d 1252, 1259-60 (10th Cir. 2019) (holding
that “Kansas convictions for robbery and aggravated robbery do not constitute ‘violent
felonies’ for purposes of the ACCA”).
B. Prosecutorial misconduct
In his § 2255 motion, Garcia argued the judgment should be vacated because the
prosecutor elicited false testimony from a key witness knowing it was false, and he failed
to correct the false testimony, all in violation of Napue v. Illinois, 360 U.S. 264 (1959).9
The testimony was that of a key witness to the murder, Russell Worthey, who was also
charged in the case, and concerned whether he had been promised anything in exchange
for his testimony against Garcia. We discussed Worthey’s testimony about promises in
our opinion deciding Garcia’s direct appeal, first in connection with a Brady10 claim, see
9 Napue requires the prosecution to correct a witness’s statement they know is false. See 360 U.S. at 269-70. 10 Brady v. Maryland, 373 U.S. 83, 87 (1963), requires the prosecution to disclose material exculpatory evidence. 15 Garcia, 793 F.3d at 1203-07, and then in connection with a Napue claim, see id.
at 1207-09. We rejected both claims.
The district court denied § 2255 relief on this issue, concluding it was procedurally
barred because Garcia’s arguments “substantially replicate claims that were advanced to,
and rejected by[,] the Tenth Circuit in the direct appeal.” R., Vol. II at 209. Garcia
contends procedural bar does not apply because the district court misstated the arguments
he raised on direct appeal, and this court “never considered the testimony [he focuses on]
under Napue.” Aplt. Opening Br. at 14.
We disagree. In our opinion deciding Garcia’s direct appeal, we considered the
exact evidence Garcia now focuses on. See Garcia, 793 F.3d at 1204 (detailing a
March 15, 2013 meeting between Worthey and one of the prosecutors in Garcia’s case,
which reflected that Worthey would plead guilty to certain charges and his sentence
would “work down from 30” years because the judge “has been very good about
following our recommendations in the past”). We determined that the failure to disclose
this meeting after Worthey neglected to mention it at Garcia’s trial and testified that
nobody had promised him anything for his testimony did not constitute a Brady violation.
See id. at 1205-07. We then considered Garcia’s Napue claim, which “closely
resemble[d his] Brady claim,” id. at 1207, and concluded the district court had not clearly
erred in finding either that Worthey had merely forgotten about the meeting and therefore
had not committed perjury or that the prosecutor also had simply forgotten about the
meeting, id. at 1209. Consequently, we rejected Garcia’s Napue claim.
16 In light of this, Garcia’s arguments fail to persuade us to issue a COA. “Under the
law-of-the-case doctrine, courts ordinarily would refuse to reconsider arguments
presented in a § 2255 motion that were raised and adjudicated on direct appeal.” United
States v. Trent, 884 F.3d 985, 994-95 (10th Cir. 2018) (brackets and internal quotation
marks omitted). We’ve recognized three very narrow exceptions to this doctrine:
“(1) when the evidence in a subsequent trial is substantially different; (2) when
controlling authority has subsequently made a contrary decision of the law applicable to
such issues; or (3) when the decision was clearly erroneous and would work a manifest
injustice.” Id. at 995 (internal quotation marks omitted). But Garcia has not argued that
any of the exceptions apply, and we fail to see how any would. Therefore, reasonable
jurists could not debate the correctness of the district court’s procedural ruling, and the
issue is not deserving of encouragement to proceed further. Accordingly, we deny a
COA on this issue.
III. Conclusion
We affirm the district court’s denial of relief on the Count 6 issue and deny a COA
on the prosecutorial-misconduct issue. But we grant Garcia’s application to expand the
COA with regard to the Count 9 claim, reverse the denial of § 2255 relief on that claim,
and remand to the district court for further proceedings consistent with our decision. We
also grant Garcia’s motion to proceed IFP on appeal, but he remains obligated to pay the
full filing and docketing fees to the Clerk of the United States District Court for the
17 District of Kansas. See 28 U.S.C. § 1915(a)(1) (permitting litigants to avoid only
prepayment of such fees).
Entered for the Court
Nancy L. Moritz Circuit Judge