Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5026 (D.C. Nos. 4:23-CV-00281-CVE-JFJ & RAMAR TRAVELLE PALMS, 4:19-CR-00103-CVE-1) (N.D. Okla.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________
Ramar Travelle Palms is serving a sentence for sex trafficking after having been
convicted of coercing his girlfriend into prostitution. After his sentence was affirmed on
appeal, he filed a federal habeas petition pursuant to 28 U.S.C. § 2255. The district court
denied him a certificate of appealability. Since his claims are procedurally barred, we
affirm the district court.
I. Background
A jury in the Northern District of Oklahoma convicted Palms of one count of Sex
Trafficking by Force, Fraud, and Coercion in violation of 18 U.S.C. §§ 1591(a)(1) and
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 2
(2), one count of Attempted Obstruction of Sex Trafficking Enforcement in violation of
18 U.S.C. § 1591(d), and one count of Transporting an Individual for Prostitution in
violation of 18 U.S.C. § 2421(a). Evidence presented to the jury suggested that Palms
had coerced his girlfriend, M.W., into prostitution. Palms appealed his conviction, and
we affirmed. United States v. Palms, 21 F.4th 689 (2021).
After we affirmed the conviction, Palms filed a petition under 28 U.S.C. § 2255, in
which he alleged that (1) the government committed prosecutorial misconduct by failing
to correct alleged perjury by a witness, which denied him a fair trial, (2) his counsel was
ineffective for failing to cross examine M.W. about her prior sex work, (3) his counsel
was ineffective for failing to raise a Fourth Amendment challenge to a government
search, and (4) the district court miscalculated his offense level when sentencing him.
The district court denied Palms’s habeas petition, and it declined to issue a
certificate of appealability, reasoning that Palms had not made a substantial showing of
the denial of a constitutional right and that reasonable jurists would not find its resolution
of the issues debatable. Palms appeals the district court’s denial of a certificate of
appealability.
II. Legal Standards
“Without a [certificate of appealability], we do not possess jurisdiction to review
the dismissal of a petition for a writ of habeas corpus.” Tryon v. Quick, 81 F.4th 1110,
1144 (10th Cir. 2023), cert. denied, No. 23-7085, 2024 WL 2709383 (U.S. May 28,
2024); see 28 U.S.C. § 2253(c)(1)(B). “Where, as here, a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is 2 Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 3
straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Sumpter v.
Kansas, 61 F.4th 729, 754 (10th Cir. 2023) (internal quotation marks omitted); see 28
U.S.C. § 2253(c)(2).
Palms seeks relief under 28 U.S.C. § 2255. “A § 2255 motion is not available to
test the legality of a matter which should have been raised on direct appeal.” United
States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). If a defendant does not present an issue
on direct appeal, he may not raise it in his § 2255 motion unless “he can show cause
excusing his procedural default and actual prejudice resulting from the errors of which he
complains, or can show that a fundamental miscarriage of justice will occur if his claim is
not addressed.” United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). “The
fundamental miscarriage of justice exception to procedural default is a markedly narrow
one, implicated only in extraordinary cases where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” United States v. McGaughy,
670 F.3d 1149, 1159 (10th Cir. 2012) (internal quotation marks and brackets omitted).
III. Discussion
As mentioned above, Palms articulated four bases for habeas relief at the district
court. He argued that the government committed prosecutorial misconduct, that his legal
representation was inadequate in two independent instances, and that the district court
erred in computing his offense level at sentencing. On appeal, Palms’s brief only
mentions his prosecutorial misconduct theory. We construe the other three theories as
waived. 3 Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 4
Palms failed to raise his prosecutorial misconduct argument on direct appeal, so
we may only grant relief on this basis if he “can show cause excusing his procedural
default and actual prejudice resulting from the errors of which he complains, or can show
that a fundamental miscarriage of justice will occur if his claim is not addressed.”
Warner, 23 F.3d at 291. Palms’s brief does not show cause, so we limit our analysis to
whether he has shown a fundamental miscarriage of justice.
A habeas petitioner may overcome a procedural bar by “making a proper showing
of actual innocence,” which requires “new evidence that shows it is more likely than not
that no reasonable juror would have convicted the petitioner.” United States v. Miles,
923 F.3d 798, 804 (10th Cir. 2019) (brackets omitted). See also Hale v. Fox, 829 F.3d
1162, 1171 (10th Cir. 2016) (“A prisoner can establish actual innocence in post-
conviction proceedings only by bringing forward new exculpatory evidence.”). “‘New
evidence’ is ‘relevant evidence that was either excluded or unavailable at trial.’” Miles,
923 F.3d at 804 (citing Schlup v.
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5026 (D.C. Nos. 4:23-CV-00281-CVE-JFJ & RAMAR TRAVELLE PALMS, 4:19-CR-00103-CVE-1) (N.D. Okla.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________
Ramar Travelle Palms is serving a sentence for sex trafficking after having been
convicted of coercing his girlfriend into prostitution. After his sentence was affirmed on
appeal, he filed a federal habeas petition pursuant to 28 U.S.C. § 2255. The district court
denied him a certificate of appealability. Since his claims are procedurally barred, we
affirm the district court.
I. Background
A jury in the Northern District of Oklahoma convicted Palms of one count of Sex
Trafficking by Force, Fraud, and Coercion in violation of 18 U.S.C. §§ 1591(a)(1) and
* 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: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 2
(2), one count of Attempted Obstruction of Sex Trafficking Enforcement in violation of
18 U.S.C. § 1591(d), and one count of Transporting an Individual for Prostitution in
violation of 18 U.S.C. § 2421(a). Evidence presented to the jury suggested that Palms
had coerced his girlfriend, M.W., into prostitution. Palms appealed his conviction, and
we affirmed. United States v. Palms, 21 F.4th 689 (2021).
After we affirmed the conviction, Palms filed a petition under 28 U.S.C. § 2255, in
which he alleged that (1) the government committed prosecutorial misconduct by failing
to correct alleged perjury by a witness, which denied him a fair trial, (2) his counsel was
ineffective for failing to cross examine M.W. about her prior sex work, (3) his counsel
was ineffective for failing to raise a Fourth Amendment challenge to a government
search, and (4) the district court miscalculated his offense level when sentencing him.
The district court denied Palms’s habeas petition, and it declined to issue a
certificate of appealability, reasoning that Palms had not made a substantial showing of
the denial of a constitutional right and that reasonable jurists would not find its resolution
of the issues debatable. Palms appeals the district court’s denial of a certificate of
appealability.
II. Legal Standards
“Without a [certificate of appealability], we do not possess jurisdiction to review
the dismissal of a petition for a writ of habeas corpus.” Tryon v. Quick, 81 F.4th 1110,
1144 (10th Cir. 2023), cert. denied, No. 23-7085, 2024 WL 2709383 (U.S. May 28,
2024); see 28 U.S.C. § 2253(c)(1)(B). “Where, as here, a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is 2 Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 3
straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Sumpter v.
Kansas, 61 F.4th 729, 754 (10th Cir. 2023) (internal quotation marks omitted); see 28
U.S.C. § 2253(c)(2).
Palms seeks relief under 28 U.S.C. § 2255. “A § 2255 motion is not available to
test the legality of a matter which should have been raised on direct appeal.” United
States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). If a defendant does not present an issue
on direct appeal, he may not raise it in his § 2255 motion unless “he can show cause
excusing his procedural default and actual prejudice resulting from the errors of which he
complains, or can show that a fundamental miscarriage of justice will occur if his claim is
not addressed.” United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). “The
fundamental miscarriage of justice exception to procedural default is a markedly narrow
one, implicated only in extraordinary cases where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” United States v. McGaughy,
670 F.3d 1149, 1159 (10th Cir. 2012) (internal quotation marks and brackets omitted).
III. Discussion
As mentioned above, Palms articulated four bases for habeas relief at the district
court. He argued that the government committed prosecutorial misconduct, that his legal
representation was inadequate in two independent instances, and that the district court
erred in computing his offense level at sentencing. On appeal, Palms’s brief only
mentions his prosecutorial misconduct theory. We construe the other three theories as
waived. 3 Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 4
Palms failed to raise his prosecutorial misconduct argument on direct appeal, so
we may only grant relief on this basis if he “can show cause excusing his procedural
default and actual prejudice resulting from the errors of which he complains, or can show
that a fundamental miscarriage of justice will occur if his claim is not addressed.”
Warner, 23 F.3d at 291. Palms’s brief does not show cause, so we limit our analysis to
whether he has shown a fundamental miscarriage of justice.
A habeas petitioner may overcome a procedural bar by “making a proper showing
of actual innocence,” which requires “new evidence that shows it is more likely than not
that no reasonable juror would have convicted the petitioner.” United States v. Miles,
923 F.3d 798, 804 (10th Cir. 2019) (brackets omitted). See also Hale v. Fox, 829 F.3d
1162, 1171 (10th Cir. 2016) (“A prisoner can establish actual innocence in post-
conviction proceedings only by bringing forward new exculpatory evidence.”). “‘New
evidence’ is ‘relevant evidence that was either excluded or unavailable at trial.’” Miles,
923 F.3d at 804 (citing Schlup v. Delo, 513 U.S. 298, 327–28 (1995)).
Palms has not carried his burden. As an initial matter, Palms does not even argue
that he is factually innocent of the charges against him. See Sawyer v. Whitley, 505 U.S.
333, 339 (1992) (petitioner can show a fundamental “miscarriage of justice” if he “has a
colorable claim of factual innocence”). That alone is enough to deny the certificate of
But even if he had, Palms fails to show actual innocence because the evidence he
offers does not establish that “it is more likely than not that no reasonable juror [could]
have convicted” him. Miles, 923 F.3d at 804. Palms argues that the alleged victim of his
4 Appellate Case: 24-5026 Document: 32-1 Date Filed: 11/06/2024 Page: 5
crime, M.W., worked as a prostitute before meeting him, which undermines the theory
that it was he who coerced her into prostitution. He points to evidence that M.W. had
listed an advertisement for prostitution services before she met him, and that she was
introduced to this work by a former friend. But this evidence does not make it “more
likely than not” that Palms is innocent. M.W.’s previous work as a prostitute would not
preclude a reasonable juror from concluding that at the time of the crimes for which he
was tried, he had procured her involvement in the sex trade by fraud or coercion. Since
Palms’s evidence does not show that “it is more likely than not that no reasonable juror
would have convicted [him],” Miles, 923 F.3d at 804, he fails to show actual innocence.
IV. Conclusion
We deny Palms’s request for a certificate of appealability.
Entered for the Court .
Timothy M. Tymkovich Circuit Judge