FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 27, 2012
TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-3096 (D.C. Nos. 6:11-CV-01300-MLB and v. 6:08-CR-10188-MLB-1) (D. Kansas) ROBERT F. ROBERTS,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.
Petitioner, Robert F. Roberts, seeks a certificate of appealability (“COA”)
so he can appeal the district court’s denial of the motion to vacate, set aside, or
correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255
motion unless he first obtains a COA). In 2009, Roberts was convicted of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The
judgment of conviction was affirmed by this court on March 29, 2011. United
States v. Roberts, 417 F. App’x 812 (10th Cir. 2001). Roberts filed the instant § 2255 motion on September 30, 2011, raising four claims of ineffective
assistance of trial counsel. The district court denied relief on all four claims.
Roberts cannot appeal the denial of his motion until he first obtains a COA
from this court. See 28 U.S.C. § 2253(c)(1)(B). To be entitled to a COA, Roberts
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate “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 adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether
Roberts has satisfied his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although Roberts need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove something more than the absence
of frivolity or the existence of mere good faith.” Id. (quotations omitted).
In his COA application and appellate brief, Roberts challenges the district
court’s disposition of his four claims and also argues the court abused its
discretion by refusing to permit him to amend his § 2255 motion. His first two
claims relate to allegations his trial counsel failed to investigate whether he was
legally permitted to carry a firearm in Kansas despite a 1999 Kansas felony
conviction. See 18 U.S.C. § 921(a)(20) (providing a prior conviction does not
-2- trigger the federal prohibition on possession of a firearm if the defendant “has had
[his] civil rights restored.”); see also See United States v. Baker, 508 F.3d 1321,
1328 (10th Cir. 2007) (looking to the “whole of state law” to determine whether a
defendant’s firearms privileges are restricted). It is clear these two claims were
properly dismissed by the district court. In 1999, Roberts was convicted of a
robbery, possession of cocaine with intent to sell, and criminal possession of a
firearm. He was sentenced to forty-four months’ incarceration. His probation
was revoked in 2000 and he was paroled in 2006. His sentence expired on June
26, 2008. The instant felon-in-possession offense occurred on April 6, 2008.
Kansas criminalizes the possession of a firearm “by a person who, within the
preceding ten years . . . has been released from imprisonment for” specifically
enumerated felonies, including robbery. Kan. Stat. Ann. § 21-4204(a)(4) (2007). 1
Because Roberts has wholly failed to show that his right to possess a firearm was
restored under Kansas law, he cannot show he was prejudiced by his attorney’s
performance. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998)
(holding a court may address Strickland’s performance and prejudice prongs “in
any order, but need not address both if [movant] fails to make a sufficient
showing of one”). Although Roberts repeatedly argues it was the Government’s
burden to prove the elements of the offense at trial, we note it is now Roberts’s
1 After Roberts committed the offense of conviction, the Kansas legislature moved the relevant statute from Kan. Stat. Ann. § 21-4204 to Kan. Stat. Ann. 21- 6304.
-3- burden to prove his counsel was constitutionally ineffective. He cannot meet that
burden with his unsupported and conclusory assertions.
Roberts has also failed to meet his burden of showing his counsel was
ineffective for failing to object or move for a mistrial when the trial court denied
the jury’s request for a read-back of testimony. He has again failed to show any
prejudice flowing from counsel’s allegedly deficient performance. Finally,
Roberts argues his counsel failed to properly familiarize himself with a
photograph before inviting testimony about it. This court has already concluded
the admission of the photograph was not error. Roberts, 417 F. App’x at 821-22.
Further, counsel relied on the photograph to support the position Roberts did not
possess a gun the night of his arrest. Id. at 822 (quoting from counsel’s closing
argument). Not only were counsel’s actions objectively reasonable, Roberts has
failed to show the jury’s verdict would be different if the photograph had not been
admitted. See United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000)
(“In order to obtain habeas relief for ineffective assistance of counsel, a petition
must establish both that his attorney’s representation was deficient and that he
was prejudiced by that deficiency.” (quotation omitted)).
We also deny relief on Roberts’s assertion the district court abused its
discretion by refusing to permit him to supplement or amend his § 2255 motion.
Roberts sought to add four claims alleging his appellate counsel was ineffective
for failing to develop record support for the four arguments raised in his original
-4- § 2255 motion. “Under Fed. R. Civ. P. 15(a), a party may amend its pleading
once as a matter of course prior to response by the opposing party.” United States
v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007). The district court refused to
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 27, 2012
TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-3096 (D.C. Nos. 6:11-CV-01300-MLB and v. 6:08-CR-10188-MLB-1) (D. Kansas) ROBERT F. ROBERTS,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.
Petitioner, Robert F. Roberts, seeks a certificate of appealability (“COA”)
so he can appeal the district court’s denial of the motion to vacate, set aside, or
correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255
motion unless he first obtains a COA). In 2009, Roberts was convicted of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The
judgment of conviction was affirmed by this court on March 29, 2011. United
States v. Roberts, 417 F. App’x 812 (10th Cir. 2001). Roberts filed the instant § 2255 motion on September 30, 2011, raising four claims of ineffective
assistance of trial counsel. The district court denied relief on all four claims.
Roberts cannot appeal the denial of his motion until he first obtains a COA
from this court. See 28 U.S.C. § 2253(c)(1)(B). To be entitled to a COA, Roberts
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate “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 adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether
Roberts has satisfied his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although Roberts need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove something more than the absence
of frivolity or the existence of mere good faith.” Id. (quotations omitted).
In his COA application and appellate brief, Roberts challenges the district
court’s disposition of his four claims and also argues the court abused its
discretion by refusing to permit him to amend his § 2255 motion. His first two
claims relate to allegations his trial counsel failed to investigate whether he was
legally permitted to carry a firearm in Kansas despite a 1999 Kansas felony
conviction. See 18 U.S.C. § 921(a)(20) (providing a prior conviction does not
-2- trigger the federal prohibition on possession of a firearm if the defendant “has had
[his] civil rights restored.”); see also See United States v. Baker, 508 F.3d 1321,
1328 (10th Cir. 2007) (looking to the “whole of state law” to determine whether a
defendant’s firearms privileges are restricted). It is clear these two claims were
properly dismissed by the district court. In 1999, Roberts was convicted of a
robbery, possession of cocaine with intent to sell, and criminal possession of a
firearm. He was sentenced to forty-four months’ incarceration. His probation
was revoked in 2000 and he was paroled in 2006. His sentence expired on June
26, 2008. The instant felon-in-possession offense occurred on April 6, 2008.
Kansas criminalizes the possession of a firearm “by a person who, within the
preceding ten years . . . has been released from imprisonment for” specifically
enumerated felonies, including robbery. Kan. Stat. Ann. § 21-4204(a)(4) (2007). 1
Because Roberts has wholly failed to show that his right to possess a firearm was
restored under Kansas law, he cannot show he was prejudiced by his attorney’s
performance. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998)
(holding a court may address Strickland’s performance and prejudice prongs “in
any order, but need not address both if [movant] fails to make a sufficient
showing of one”). Although Roberts repeatedly argues it was the Government’s
burden to prove the elements of the offense at trial, we note it is now Roberts’s
1 After Roberts committed the offense of conviction, the Kansas legislature moved the relevant statute from Kan. Stat. Ann. § 21-4204 to Kan. Stat. Ann. 21- 6304.
-3- burden to prove his counsel was constitutionally ineffective. He cannot meet that
burden with his unsupported and conclusory assertions.
Roberts has also failed to meet his burden of showing his counsel was
ineffective for failing to object or move for a mistrial when the trial court denied
the jury’s request for a read-back of testimony. He has again failed to show any
prejudice flowing from counsel’s allegedly deficient performance. Finally,
Roberts argues his counsel failed to properly familiarize himself with a
photograph before inviting testimony about it. This court has already concluded
the admission of the photograph was not error. Roberts, 417 F. App’x at 821-22.
Further, counsel relied on the photograph to support the position Roberts did not
possess a gun the night of his arrest. Id. at 822 (quoting from counsel’s closing
argument). Not only were counsel’s actions objectively reasonable, Roberts has
failed to show the jury’s verdict would be different if the photograph had not been
admitted. See United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000)
(“In order to obtain habeas relief for ineffective assistance of counsel, a petition
must establish both that his attorney’s representation was deficient and that he
was prejudiced by that deficiency.” (quotation omitted)).
We also deny relief on Roberts’s assertion the district court abused its
discretion by refusing to permit him to supplement or amend his § 2255 motion.
Roberts sought to add four claims alleging his appellate counsel was ineffective
for failing to develop record support for the four arguments raised in his original
-4- § 2255 motion. “Under Fed. R. Civ. P. 15(a), a party may amend its pleading
once as a matter of course prior to response by the opposing party.” United States
v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007). The district court refused to
permit Roberts to amend his § 2255 motion because the proposed amendments
were not signed under penalty of perjury and because he sought to raise new
claims. See id. at 1315. This court, however, has previously held that a district
court must give a § 2255 movant the opportunity to amend his motion to conform
to procedural requirements even if he seeks to add a new claim. See id. at 1316-
17 & 1317 n.3 (holding a § 2255 movant seeking to add a timely claim should be
given “an opportunity to conform his motion to Rule 2(b)’s procedural
requirements”). We conclude, therefore, the district court abused its discretion by
refusing to permit Roberts to amend his motion to add the four ineffective-
assistance-of-appellate-counsel claims. We further conclude, however, that
Roberts is not entitled to a COA on this issue because he has not made “a
substantial showing of the denial of a constitutional right” with respect to these
four new claims. 28 U.S.C. § 2253(c)(2). We have already concluded his four
claims of ineffective assistance of trial counsel are meritless. Additionally, in his
application for COA and appellate brief, Roberts has wholly failed to identify the
information appellate counsel allegedly failed to garner and how that information
would entitle him to relief on his claims that trial counsel was ineffective.
-5- Having undertaken a review of Roberts’s application for a COA and
appellate filings, the district court’s order, and the entire record on appeal
pursuant to the framework set out by the Supreme Court in Miller-El, this court
concludes Roberts is not entitled to a COA. The district court’s resolution of his
§ 2255 motion is not reasonably subject to debate and the issues he seeks to raise
on appeal are not adequate to deserve further proceedings. Accordingly, this
court denies Roberts’s request for a COA and dismisses this appeal. Roberts’s
request to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge
-6-