Appellate Case: 20-6119 Document: 010110617209 FILEDPage: 1 Date Filed: 12/10/2021 United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS December 10, 2021 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6119 (D.C. Nos. 5:19-CV-00073-R & JEFFREY LEMON, JR., 5:15-CR-00185-R-1) (W.D. Okla.) Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
Mr. Jeffrey Lemon, Jr., appeals from the district court’s denial of his motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He requests a
certificate of appealability (“COA”) to authorize us to reach the merits of his
appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we deny him a COA and
dismiss the matter.
I
Mr. Lemon was indicted by a federal grand jury on eighteen counts of theft
* This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 2
of mail matter by a United States Postal Service employee, in violation of 18
U.S.C. §§ 2 and 1709. At his arraignment, the magistrate judge appointed
Assistant Federal Public Defender William P. Early to represent Mr. Lemon.
Mr. Early and Mr. Lemon’s attorney-client relationship soured, such that on
the night before the trial, Mr. Lemon moved the court for leave to replace Mr.
Early with a salaried attorney and moved for a continuance. Mr. Lemon
complained, among other things, that Mr. Early failed to visit the post office
where he worked to talk with some employees. Mr. Lemon also complained that
Mr. Early failed to interview certain prospective witnesses before trial. Mr. Early,
for his part, supported Mr. Lemon’s requests but nevertheless claimed that he did
visit the post office and interviewed the employees and witnesses whom Mr.
Lemon specifically identified. Mr. Early explained that the whole issue regarding
Mr. Lemon’s disagreement with him came down to what he thought was
appropriate versus what Mr. Lemon thought was appropriate to do for trial
preparation. On that matter, Mr. Early told the district court that his trial strategy
was adequately prepared. Given this information, the court chose to deny Mr.
Lemon’s motions.
At trial, the government called twenty-two witnesses. Mr. Lemon’s
appointed counsel cross-examined twenty of them, but did not call any witnesses.
Thirteen of the government’s witnesses testified that they purchased and mailed
2 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 3
money orders at the post office but that the money orders were never received by
their intended recipients. And all but one of those witnesses provided a physical
description of the postal clerk who assisted them; their descriptions matched Mr.
Lemon. Evidence was also provided showing that the money orders were cashed
by a certain “Clerk 4,” which was Mr. Lemon’s employee status number at the
post office. There also was testimony that no other postal clerk logged into the
post office’s computer system as “Clerk 4.” Evidence also showed Mr. Lemon’s
propensity for gambling. And crucially, evidence was admitted showing that Mr.
Lemon confessed to the crime in the form of a written statement under penalty of
perjury, wherein he admitted to cashing the money orders.
Mr. Lemon’s counsel challenged the credibility of the government’s
evidence by showing that the investigators did not use all of the available
techniques at their disposal when they were investigating Mr. Lemon. Counsel for
Mr. Lemon particularly noted that the government did not do certain things—e.g.,
“record [an] interview [between investigators and Mr. Lemon], obtain video
surveillance, use tracker devices, or obtain [Mr. Lemon’s] bank records”—in an
attempt to attack the government’s investigation. See United States v. Lemon, 714
F. App’x 851, 855 (10th Cir. 2017) (unpublished).
The jury found Mr. Lemon guilty of seventeen counts of theft of mail matter
by a postal service employee. The district court sentenced Mr. Lemon to twelve
3 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 4
months’ imprisonment and two years of supervised release, the latter of which was
later extended by twelve months due to a violation.
Mr. Lemon appealed from his convictions, arguing that the district court
prejudicially erred by denying his motion for a continuance filed on the eve of
trial, admitting his confession to postal investigators, admitting evidence of his
gambling, excluding his repudiation of his prior confession, and instructing the
jury that the government was under no obligation to use any particular
investigative method. A panel of this court upheld the district court’s rulings on
all of these challenged matters. See Lemon, 714 F. App’x at 853.
On January 25, 2019, Mr. Lemon filed the instant § 2255 motion. Mr.
Lemon asked the district court to vacate his convictions and order a new trial
because he received ineffective assistance of counsel. Specifically, he argued that
his counsel was ineffective because of counsel’s failure to call certain defense
witnesses, to introduce into evidence certain photos of the post office and Mr.
Lemon’s bank statements, and to adequately cross-examine government witnesses.
The district court denied the motion. The district court reasoned that, first,
Mr. Lemon offered nothing but his own descriptions of the potential defense
witnesses’ testimony. Second, the district court noted that the photos of the post
office were redundant of the photos the government already introduced into
evidence. As for the bank statements, the district court observed that Mr. Lemon
4 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 5
failed to produce anything that would substantiate his allegation that the bank
records would have demonstrated his financial stability; indeed, there was
evidence at trial showing that Mr. Lemon had financial difficulties during the
relevant period. Lastly, the district court found that Mr. Lemon’s argument
regarding his counsel’s failure to cross-examine witnesses was unavailing because
Mr. Lemon’s claims about the potential witnesses and their testimony were either
unsupported assertions, contrary to the record, potentially detrimental to his own
case, or simply irrelevant in rebutting the government’s case-in-
chief—inadequacies that made the district court conclude that Mr. Lemon failed to
show how he was prejudiced by his counsel’s purported failures.
The district court also denied Mr. Lemon a COA. Mr. Lemon thereafter
filed a notice of appeal, seeking the issuance of a COA to challenge the court’s
dismissal of his habeas petition.
II
Before our court may fully consider and rule on the merits of Mr.
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Appellate Case: 20-6119 Document: 010110617209 FILEDPage: 1 Date Filed: 12/10/2021 United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS December 10, 2021 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6119 (D.C. Nos. 5:19-CV-00073-R & JEFFREY LEMON, JR., 5:15-CR-00185-R-1) (W.D. Okla.) Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
Mr. Jeffrey Lemon, Jr., appeals from the district court’s denial of his motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He requests a
certificate of appealability (“COA”) to authorize us to reach the merits of his
appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we deny him a COA and
dismiss the matter.
I
Mr. Lemon was indicted by a federal grand jury on eighteen counts of theft
* 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 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 2
of mail matter by a United States Postal Service employee, in violation of 18
U.S.C. §§ 2 and 1709. At his arraignment, the magistrate judge appointed
Assistant Federal Public Defender William P. Early to represent Mr. Lemon.
Mr. Early and Mr. Lemon’s attorney-client relationship soured, such that on
the night before the trial, Mr. Lemon moved the court for leave to replace Mr.
Early with a salaried attorney and moved for a continuance. Mr. Lemon
complained, among other things, that Mr. Early failed to visit the post office
where he worked to talk with some employees. Mr. Lemon also complained that
Mr. Early failed to interview certain prospective witnesses before trial. Mr. Early,
for his part, supported Mr. Lemon’s requests but nevertheless claimed that he did
visit the post office and interviewed the employees and witnesses whom Mr.
Lemon specifically identified. Mr. Early explained that the whole issue regarding
Mr. Lemon’s disagreement with him came down to what he thought was
appropriate versus what Mr. Lemon thought was appropriate to do for trial
preparation. On that matter, Mr. Early told the district court that his trial strategy
was adequately prepared. Given this information, the court chose to deny Mr.
Lemon’s motions.
At trial, the government called twenty-two witnesses. Mr. Lemon’s
appointed counsel cross-examined twenty of them, but did not call any witnesses.
Thirteen of the government’s witnesses testified that they purchased and mailed
2 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 3
money orders at the post office but that the money orders were never received by
their intended recipients. And all but one of those witnesses provided a physical
description of the postal clerk who assisted them; their descriptions matched Mr.
Lemon. Evidence was also provided showing that the money orders were cashed
by a certain “Clerk 4,” which was Mr. Lemon’s employee status number at the
post office. There also was testimony that no other postal clerk logged into the
post office’s computer system as “Clerk 4.” Evidence also showed Mr. Lemon’s
propensity for gambling. And crucially, evidence was admitted showing that Mr.
Lemon confessed to the crime in the form of a written statement under penalty of
perjury, wherein he admitted to cashing the money orders.
Mr. Lemon’s counsel challenged the credibility of the government’s
evidence by showing that the investigators did not use all of the available
techniques at their disposal when they were investigating Mr. Lemon. Counsel for
Mr. Lemon particularly noted that the government did not do certain things—e.g.,
“record [an] interview [between investigators and Mr. Lemon], obtain video
surveillance, use tracker devices, or obtain [Mr. Lemon’s] bank records”—in an
attempt to attack the government’s investigation. See United States v. Lemon, 714
F. App’x 851, 855 (10th Cir. 2017) (unpublished).
The jury found Mr. Lemon guilty of seventeen counts of theft of mail matter
by a postal service employee. The district court sentenced Mr. Lemon to twelve
3 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 4
months’ imprisonment and two years of supervised release, the latter of which was
later extended by twelve months due to a violation.
Mr. Lemon appealed from his convictions, arguing that the district court
prejudicially erred by denying his motion for a continuance filed on the eve of
trial, admitting his confession to postal investigators, admitting evidence of his
gambling, excluding his repudiation of his prior confession, and instructing the
jury that the government was under no obligation to use any particular
investigative method. A panel of this court upheld the district court’s rulings on
all of these challenged matters. See Lemon, 714 F. App’x at 853.
On January 25, 2019, Mr. Lemon filed the instant § 2255 motion. Mr.
Lemon asked the district court to vacate his convictions and order a new trial
because he received ineffective assistance of counsel. Specifically, he argued that
his counsel was ineffective because of counsel’s failure to call certain defense
witnesses, to introduce into evidence certain photos of the post office and Mr.
Lemon’s bank statements, and to adequately cross-examine government witnesses.
The district court denied the motion. The district court reasoned that, first,
Mr. Lemon offered nothing but his own descriptions of the potential defense
witnesses’ testimony. Second, the district court noted that the photos of the post
office were redundant of the photos the government already introduced into
evidence. As for the bank statements, the district court observed that Mr. Lemon
4 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 5
failed to produce anything that would substantiate his allegation that the bank
records would have demonstrated his financial stability; indeed, there was
evidence at trial showing that Mr. Lemon had financial difficulties during the
relevant period. Lastly, the district court found that Mr. Lemon’s argument
regarding his counsel’s failure to cross-examine witnesses was unavailing because
Mr. Lemon’s claims about the potential witnesses and their testimony were either
unsupported assertions, contrary to the record, potentially detrimental to his own
case, or simply irrelevant in rebutting the government’s case-in-
chief—inadequacies that made the district court conclude that Mr. Lemon failed to
show how he was prejudiced by his counsel’s purported failures.
The district court also denied Mr. Lemon a COA. Mr. Lemon thereafter
filed a notice of appeal, seeking the issuance of a COA to challenge the court’s
dismissal of his habeas petition.
II
Before our court may fully consider and rule on the merits of Mr. Lemon’s
appellate claims, he must obtain a COA to appeal from the district court’s order
denying his § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); Clark v. Oklahoma,
468 F.3d 711, 713 (10th Cir. 2006) (“A COA is a jurisdictional pre-requisite to
our review.” (citing Miller-El v. Cockrell, 537 U.S. 322, 323 (2003))). We may
5 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 6
grant a COA only if Mr. Lemon “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
In its seminal decision, Slack v. McDaniel, the Supreme Court shed light on
the showing required to satisfy this statutory standard:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.
529 U.S. 473, 484 (2000).
In other words, because the COA inquiry “is not coextensive with a merits
analysis,” the “only question” at this stage “is whether the applicant has shown
that ‘jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S. Ct.
759, 773 (2017) (quoting Miller-El, 537 U.S. at 327). In fact, if a court of appeals
“first decid[es] the merits of an appeal, and then justif[ies] its denial of a COA
based on its adjudication of the actual merits, it is in essence deciding an appeal
without jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37).
Mr. Lemon’s ineffective-assistance claim implicates the well-settled
standard that the Supreme Court articulated in Strickland v. Washington, 466 U.S.
668, 687 (1984). Therefore, in determining whether to grant Mr. Lemon a COA,
6 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 7
we must employ this standard. Under Strickland, proponents of an ineffective-
assistance claim must carry a two-fold burden: they must show (1) that “counsel’s
performance was deficient,” and (2) that “the deficient performance prejudiced the
defense.” Id.
Mr. Lemon argues that a COA is warranted because reasonable jurists could
disagree about the district court’s disposition of his § 2255 motion. Boiled down
to its essence, Mr. Lemon predicates this argument on two points. First, Mr.
Lemon alleges that his counsel unreasonably failed to investigate and develop
evidence that would have undermined the government’s case. Second, and
relatedly, he argues that the court erred in not conducting an evidentiary hearing
regarding his ineffective-assistance claim. We disagree on both points and
conclude that reasonable jurists would not debate whether the district court
properly denied Mr. Lemon’s ineffective-assistance claim without holding an
evidentiary hearing.
A
Mr. Lemon stresses that his counsel’s “investigation into independent
witnesses” was lacking, leading “to [Mr. Lemon’s] prejudice.” Aplt.’s Opening
Br. at 10. To illustrate that contention, Mr. Lemon enumerates various things that
certain witnesses could have proffered as testimony but for his counsel’s lack of
investigation: one of the witnesses, the post office manager, “could have testified
7 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 8
that postal inspectors did review video evidence and found no evidence of
untoward actions by Mr. Lemon”; his counsel’s cross-examination of a police
investigator “could have [] established that Mr. Lemon’s girlfriend and now wife .
. . borrowed and used” Mr. Lemon’s casino player’s card, which ostensibly would
have served to negate the evidence of his gambling habit; “supervisors at the post
office could have testified there was not enough cash on hand” for Mr. Lemon to
have cashed money orders valued at up to $1,000 every business day; defense
counsel “would have learned” that another postal employee “purchased a money
order from Mr. Lemon, the same money order claimed to have been purchased
when [a] victim[’s] money order was cashed,” and that same postal employee
“would have stated that he bought the money order under” Mr. Lemon’s name;
and, lastly, quite a few postal workers also had access to Mr. Lemon’s password
and work station and had significant financial problems. Id. at 11–12.
However, Mr. Lemon’s arguments do not persuade us that reasonable jurists
would conclude that the district court’s resolution of his ineffective-assistance
claim was debatable or wrong. Mr. Lemon offers nothing more than bald, vague
assertions—without proper evidentiary support through affidavits or
otherwise—regarding the substance and trial impact of prospective witnesses’
testimony. Yet, under Strickland, that is not good enough. See Snow v. Sirmons,
474 F.3d 693, 730 n.42 (10th Cir. 2007) (noting that, to show prejudice under
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Strickland, a litigant “must show . . . that the testimony . . . would have been
favorable, [and] that the witness [actually] would have testified at trial” (quoting
Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990))); see also United
States v. Gallant, 562 F. App’x 712, 715 (10th Cir. 2014) (unpublished) (“Movants
insufficiently support their allegations that the ignored issues would have helped
their defense. . . . [M]ovants offer nothing but their own descriptions of these
witnesses’ prospective testimony . . . . These unsupported descriptions, which also
fail to show that the uncalled witnesses would have testified at trial, are
insufficient to show prejudice.”); United States v. Ashimi, 932 F.2d 643, 650 (7th
Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally
be presented in the form of actual testimony by the witness or on affidavit. A
defendant cannot simply state that the testimony would have been favorable;
self-serving speculation will not sustain an ineffective assistance claim.” (footnote
omitted)).
Put more specifically, Mr. Lemon does not provide witness affidavits, cite
to helpful statements in the trial record, or quote documents from his trial
counsel’s interviews with any of these potential witnesses to bolster his
ineffective-assistance claim. What Mr. Lemon proffers is merely his unsupported
claims about what certain potential witnesses could have said at trial and how such
testimony could have affected his case, and that is insufficient to demonstrate what
9 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 10
Mr. Lemon’s proposed supportive witnesses’ actual “testimony would have been.”
See United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986).
In sum, reasonable jurists would not debate the district court’s resolution of
Mr. Lemon’s ineffective-assistance claims.1
B
Further, Mr. Lemon’s complains about the district court’s decision not to
hold an evidentiary hearing. Mr. Lemon did ask the district court—albeit in
cursory fashion—to grant him such a hearing, but the court effectively denied him
this relief. Mr. Lemon’s complaints in this regard, however, do nothing to cast
any doubt on the propriety of the district court’s ultimate resolution of his
ineffective-assistance claim. More specifically, reasonable jurists would not
debate the correctness of that resolution on the existing record—without an
evidentiary hearing. Under the circumstances here, it follows ineluctably no
1 Mr. Lemon also suggests that his counsel was “not prepared with respect to the defense case.” Aplt.’s Opening Br. at 10. Supposedly, “[a]s a result of that, defense counsel failed to develop evidence, either on cross-examination or through independent witnesses, that would have cast significant doubt on the government’s case.” Id. Mr. Lemon does not meaningfully support these assertions—which gives us no reason to question our decision to deny him a COA on his ineffective-assistance claim. As noted, his appointed counsel told the district court he was ready to go to trial and had a trial strategy in hand. And, under that strategy, defense counsel attacked the government’s investigation of Mr. Lemon. Mr. Lemon does not demonstrate how counsel’s approach in this respect was inadequate.
10 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 11
reasonable jurist would debate that the district court did not abuse its discretion in
denying Mr. Lemon an evidentiary hearing to prove up the allegations of his
ineffective-assistance claim.
Under § 2255, a district court must conduct an evidentiary hearing “[u]nless
the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b); accord United States v.
Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000). “We review the district court's
refusal to hold an evidentiary hearing for an abuse of discretion.” United States v.
Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (quoting United States v. Harms, 371
F.3d 1208, 1210 (10th Cir. 2004)).
Mr. Lemon makes no distinct argument in support of an evidentiary hearing.
Nor does he explain why the district court abused its discretion in denying him
one. He merely notes the statutory conditions under which the grant of an
evidentiary hearing is required, refers us back to his substantive ineffective-
assistance arguments, and conclusorily asserts that he is “entitled to an evidentiary
hearing on his ineffective assistance of counsel claim[.]” Aplt.’s Opening Br. at
15; see also id. at 7 (stating conclusorily that “[t]he petition stated sufficient facts
to warrant an evidentiary hearing”). Given this skeletal presentation, we could
rightly deem this argument to be waived. See Eizember v. Trammel, 803 F.3d
1129, 1145 (10th Cir. 2015) (citing Grant v. Trammell, 727 F.3d 1006, 1025 (10th
Cir. 2013)); see also Fairchild v. Trammell, 784 F.3d 702, 724 (10th Cir. 2015)
11 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 12
(“Even a capital defendant can waive an argument by inadequately briefing an
issue.” (quoting Grant, 727 F.3d at 1025)).
However, even if we were inclined to decipher the likely substance of this
argument, we would conclude that it does not aid Mr. Lemon’s quest for a COA.
As suggested by our discussion, supra, regarding his substantive ineffective-
assistance argument, Mr. Lemon has provided no evidence that would have given
the district court “a firm idea of what the [proffered] testimony will encompass
and how it will support [his ineffective-assistance] claim.” Moya, 676 F.3d at
1214 (quoting United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004)).
Instead, he merely relied on his unsupported and conclusory assertions regarding
what certain witnesses might say.
Not only did this vague and nebulous presentation ultimately doom Mr.
Lemon’s ineffective-assistance claim and render the district court’s denial of
it—on the existing record—beyond reasonable debate, it also makes clear that the
district court could not have abused its discretion in denying him an evidentiary
hearing regarding this claim. See, e.g., Cervini, 379 F.3d at 993 (“The vague
character of Defendant’s proffer regarding what his witnesses . . . would actually
say[] about this claim does not favor an evidentiary hearing.”). Put another way,
given the patent weaknesses of Mr. Lemon’s ineffective-assistance claim on the
existing record, no reasonable jurist would debate that the district court did not
abuse its discretion in effectively ruling that the existing record conclusively
12 Appellate Case: 20-6119 Document: 010110617209 Date Filed: 12/10/2021 Page: 13
shows that Mr. Lemon is not entitled to relief. See Moya, 676 F.3d at 1214
(“Given the conclusory nature of Defendant’s allegations, the district court’s
denial of an evidentiary hearing was not an abuse of discretion.”).
III
For the foregoing reasons, we DENY Mr. Lemon’s request for a COA and
DISMISS this matter.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge