Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 27, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1363 (D.C. Nos. 1:18-CV-02284-PAB & MICHAEL EUGENE SIMPSON, 1:14-CR-00265-PAB-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________
In this 28 U.S.C. § 2255 proceeding, Michael Eugene Simpson contends the
district court violated his right to due process by construing a letter he sent to this
court as a notice of appeal. Because this court issued a certificate of appealability
(COA), we exercise jurisdiction under 28 U.S.C. § 2253. But we affirm the district
court’s judgment denying the § 2255 motion because Mr. Simpson has not
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 2
established that the handling of the letter constituted a due-process violation, and he
has not requested a COA on any other issue.
BACKGROUND
On direct appeal, this court reversed 10 of Mr. Simpson’s 13 convictions for
drug and firearms violations. See United States v. Simpson, 845 F.3d 1039, 1043,
1064 (10th Cir. 2017). He then challenged the three remaining convictions under
§ 2255. On August 11, 2020, the district court denied two motions to add new claims
to the original § 2255 motion, denied the § 2255 motion, and denied a COA.
Six weeks later, on September 22, Mr. Simpson sent this court a letter “asking
for a stay on the proceedings of Case (14-cr-00265-PAB) [his § 2255 case in district
court] and keeping on the table [his] rights at appeal.” R. Vol. 4 (filed 11/16/20) at
343. Construing the letter as a “misdirected notice of appeal,” this court sent the
letter to the district court “so it can be properly filed as of October 1, 2020,” the date
this court filed it. Id. at 342.
Then, in a motion dated November 2 and filed on November 12, Mr. Simpson
moved the district court to grant him an extension of time to file a notice of appeal.
On November 16 the district court denied the motion as moot because this appeal,
based on the September 22 letter, was already underway. Mr. Simpson did not
dispute that decision or file any other postjudgment motions regarding the § 2255
motion.
With the district court having denied a COA, Mr. Simpson had to secure a
COA from this court to be able to proceed with this appeal. See 28 U.S.C.
2 Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 3
§ 2253(c)(1)(B). In requesting a COA, he informed us that in sending his
September 22 letter, he had not intended to appeal at that time, but instead simply
requested “additional time to file an appeal.” Pet. to the Ct. of Apps. for Issuance of
COA at 2. He asserted that his “Fifth Amendment right to due process was violated
when the district court clerk misconstrued his letter as a request for a notice of
appeal; depriving him [of] the right to file a [Federal Rule of Civil Procedure] 59 (e)
motion and other motions seeki[ng] redress in the district court first.” Id.
Mr. Simpson did not request a COA on any other issue.
This court granted Mr. Simpson leave to proceed in forma pauperis and
granted a COA regarding the handling of the September 22 letter. Mr. Simpson filed
an opening brief and the United States responded. We now affirm because he has
failed to show that construing the letter as a notice of appeal prejudiced him.
DISCUSSION
“[P]roof of prejudice is generally a necessary but not sufficient element of a
due process claim.” United States v. Lovasco, 431 U.S. 783, 790 (1977); see United
States v. Thompson, 518 F.3d 832, 861 (10th Cir. 2008) (defendant failed to show
that alleged government intrusion into the attorney-client relationship “caused him
any actual and substantial prejudice”); Miller v. Fed. Bureau of Prisons, 989 F.2d
420, 423 (10th Cir. 1993) (defendant failed to show prejudice from lack of prompt
notice in parole process). Accordingly, Mr. Simpson must show prejudice to proceed
with his claim.
3 Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 4
There is no doubt that Mr. Simpson wanted to appeal from the denial of his
§ 2255 motion. He said as much in his November 2020 motion requesting an
extension of time to appeal. Given that he certainly wanted to appeal, it is difficult to
see how commencing this appeal as of October 1, 2020, prejudiced him in any way.
To the extent that he wanted more time to research before filing a notice of appeal, he
could not extend the appeal deadline indefinitely. Further, it is unclear how much
research would have been required; a notice of appeal need not be elaborate, and the
issues for appeal were limited to the questions that had been raised in and resolved by
the district court. In any event, this court granted him two extra months to file his
motion for a COA and nearly three extra months to file his opening brief.
In granting a COA the court found it significant that construing the letter as a
notice of appeal may have barred Mr. Simpson from filing postjudgment motions in
the district court. His opening brief, however, alleges only that prison conditions
created obstacles to researching and filing motions. These assertions fall short of
showing that Mr. Simpson would have filed a potentially meritorious Rule 59(e) or
other postjudgment motion had the court not construed the September 22 letter as a
notice of appeal, which is the basis of Mr. Simpson’s due-process claim. Nor does
his opening brief offer any other ground for concluding that he was prejudiced by
construing the September 22 letter as a notice of appeal, rather than from prison
conditions or other obstacles. We liberally construe a pro se litigant’s filings, but we
do not act as his attorney. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir.
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Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 27, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1363 (D.C. Nos. 1:18-CV-02284-PAB & MICHAEL EUGENE SIMPSON, 1:14-CR-00265-PAB-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________
In this 28 U.S.C. § 2255 proceeding, Michael Eugene Simpson contends the
district court violated his right to due process by construing a letter he sent to this
court as a notice of appeal. Because this court issued a certificate of appealability
(COA), we exercise jurisdiction under 28 U.S.C. § 2253. But we affirm the district
court’s judgment denying the § 2255 motion because Mr. Simpson has not
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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. Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 2
established that the handling of the letter constituted a due-process violation, and he
has not requested a COA on any other issue.
BACKGROUND
On direct appeal, this court reversed 10 of Mr. Simpson’s 13 convictions for
drug and firearms violations. See United States v. Simpson, 845 F.3d 1039, 1043,
1064 (10th Cir. 2017). He then challenged the three remaining convictions under
§ 2255. On August 11, 2020, the district court denied two motions to add new claims
to the original § 2255 motion, denied the § 2255 motion, and denied a COA.
Six weeks later, on September 22, Mr. Simpson sent this court a letter “asking
for a stay on the proceedings of Case (14-cr-00265-PAB) [his § 2255 case in district
court] and keeping on the table [his] rights at appeal.” R. Vol. 4 (filed 11/16/20) at
343. Construing the letter as a “misdirected notice of appeal,” this court sent the
letter to the district court “so it can be properly filed as of October 1, 2020,” the date
this court filed it. Id. at 342.
Then, in a motion dated November 2 and filed on November 12, Mr. Simpson
moved the district court to grant him an extension of time to file a notice of appeal.
On November 16 the district court denied the motion as moot because this appeal,
based on the September 22 letter, was already underway. Mr. Simpson did not
dispute that decision or file any other postjudgment motions regarding the § 2255
motion.
With the district court having denied a COA, Mr. Simpson had to secure a
COA from this court to be able to proceed with this appeal. See 28 U.S.C.
2 Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 3
§ 2253(c)(1)(B). In requesting a COA, he informed us that in sending his
September 22 letter, he had not intended to appeal at that time, but instead simply
requested “additional time to file an appeal.” Pet. to the Ct. of Apps. for Issuance of
COA at 2. He asserted that his “Fifth Amendment right to due process was violated
when the district court clerk misconstrued his letter as a request for a notice of
appeal; depriving him [of] the right to file a [Federal Rule of Civil Procedure] 59 (e)
motion and other motions seeki[ng] redress in the district court first.” Id.
Mr. Simpson did not request a COA on any other issue.
This court granted Mr. Simpson leave to proceed in forma pauperis and
granted a COA regarding the handling of the September 22 letter. Mr. Simpson filed
an opening brief and the United States responded. We now affirm because he has
failed to show that construing the letter as a notice of appeal prejudiced him.
DISCUSSION
“[P]roof of prejudice is generally a necessary but not sufficient element of a
due process claim.” United States v. Lovasco, 431 U.S. 783, 790 (1977); see United
States v. Thompson, 518 F.3d 832, 861 (10th Cir. 2008) (defendant failed to show
that alleged government intrusion into the attorney-client relationship “caused him
any actual and substantial prejudice”); Miller v. Fed. Bureau of Prisons, 989 F.2d
420, 423 (10th Cir. 1993) (defendant failed to show prejudice from lack of prompt
notice in parole process). Accordingly, Mr. Simpson must show prejudice to proceed
with his claim.
3 Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 4
There is no doubt that Mr. Simpson wanted to appeal from the denial of his
§ 2255 motion. He said as much in his November 2020 motion requesting an
extension of time to appeal. Given that he certainly wanted to appeal, it is difficult to
see how commencing this appeal as of October 1, 2020, prejudiced him in any way.
To the extent that he wanted more time to research before filing a notice of appeal, he
could not extend the appeal deadline indefinitely. Further, it is unclear how much
research would have been required; a notice of appeal need not be elaborate, and the
issues for appeal were limited to the questions that had been raised in and resolved by
the district court. In any event, this court granted him two extra months to file his
motion for a COA and nearly three extra months to file his opening brief.
In granting a COA the court found it significant that construing the letter as a
notice of appeal may have barred Mr. Simpson from filing postjudgment motions in
the district court. His opening brief, however, alleges only that prison conditions
created obstacles to researching and filing motions. These assertions fall short of
showing that Mr. Simpson would have filed a potentially meritorious Rule 59(e) or
other postjudgment motion had the court not construed the September 22 letter as a
notice of appeal, which is the basis of Mr. Simpson’s due-process claim. Nor does
his opening brief offer any other ground for concluding that he was prejudiced by
construing the September 22 letter as a notice of appeal, rather than from prison
conditions or other obstacles. We liberally construe a pro se litigant’s filings, but we
do not act as his attorney. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005). And when the litigant fails to brief an issue, “we cannot fill the
4 Appellate Case: 20-1363 Document: 010110624025 Date Filed: 12/27/2021 Page: 5
void by crafting arguments and performing the necessary legal research.” Id. at 841
(internal quotation marks omitted).
CONCLUSION
The failure to establish prejudice is fatal to Mr. Simpson’s due-process claim.
Moreover, he never requested a COA regarding any other issue with regard to the
denial of his § 2255 motion. We therefore must affirm the district court’s judgment
denying the § 2255 motion.
Entered for the Court
Harris L Hartz Circuit Judge