United States v. Solarin

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 9, 2021
• Docket: 21-1090
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 9, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-1090 (D.C. Nos. 1:16-CV-01615-CMA & FREDERICK OLUWOLE SOLARIN, 1:05-CR-00311-CMA-KMT-1) (D. Colo.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges. _________________________________

Defendant Frederick Oluwole Solarin, a federal prisoner proceeding pro se,

seeks a certificate of appealability (COA) from the district court’s order dismissing

certain motions for lack of jurisdiction and its denying another motion on its merits.

We deny a COA and dismiss this appeal.

I. BACKGROUND & PROCEDURAL HISTORY

In June 2005, a number of masked, gun-wielding men robbed a bank in

Aurora, Colorado, taking $26,000 in cash. The FBI soon received a tip that Solarin

may have been one of the robbers.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Solarin was then on parole for a juvenile conviction. Colorado state officials

arrested Solarin, ostensibly on a parole violation, and booked him into jail. FBI

agents then came to the jail and questioned him about the bank robbery. He waived

his Miranda rights and confessed to participating in the robbery and carrying a gun in

the process.

A federal grand jury soon indicted Solarin on one count of armed bank

robbery, including aiding and abetting, in violation of 18 U.S.C. § 2113(a) and (d)

and 18 U.S.C. § 2; and one count of using or carrying a firearm during and in relation

to a crime of violence, including aiding and abetting, in violation of 18 U.S.C.

§ 924(c) and 18 U.S.C. § 2. Solarin pleaded not guilty and went to trial, testifying in

his own behalf that his confession was false and coerced. The jury nonetheless

convicted on both counts. The district court then sentenced him to a combined prison

term of 244 months. He appealed and we affirmed. See United States v. Solarin,

250 F. App’x 887 (10th Cir. 2007).

Soon after our affirmance, Solarin filed a 28 U.S.C. § 2255 motion, claiming

ineffective assistance of counsel for failure to argue that he had been arrested without

probable cause. Specifically, he claimed the Colorado officials who arrested him

never had any suspicion of a parole violation, but were instead acting on the FBI’s

orders to bring him into custody. He further claimed that the FBI did not have

probable cause to arrest him before his custodial confession. Thus, in Solarin’s view,

the FBI had arranged to arrest him before anyone had probable cause to do so, in

violation of the Fourth Amendment.

2 The government responded that “[e]ven if it was because of the federal

investigation [that Colorado officials arrested Solarin], there was no proof that these

State of Colorado folk were acting as mere puppets or handmaidens of the federal

government.” Suppl. R. at 30. In reply, Solarin borrowed this language and insisted

that the Colorado officials were indeed “acting as mere puppets or handmaidens of

the federal government.” Id. at 48 (internal quotation marks omitted).

In its order resolving Solarin’s motion, the district court attributed the

puppets/handmaidens metaphor to Solarin instead of the government. But rather than

analyzing the relationship between the FBI and the Colorado officers who arrested

Solarin, the district court disposed of Solarin’s argument by finding that the FBI had

developed probable cause to arrest him before Colorado officials brought him into

custody. In that light, the district court concluded that counsel’s failure to raise the

Fourth Amendment suppression theory created no prejudice (i.e., Solarin would have

lost the argument anyway), so Solarin’s ineffective-assistance claim lacked merit.

Accordingly, the district court denied Solarin’s § 2255 motion. We denied a COA.

See United States v. Solarin, 383 F. App’x 772 (10th Cir. 2010).

Solarin has since made multiple further attempts to collaterally attack his

conviction. For present purposes, two challenges filed in 2016 are most relevant.

First, in March 2016, Solarin filed a pro se motion with the district court

captioned “Motion for Relief from Judgment Pursuant to Rule 60(d)(1) & (3),

Federal Rules of Civil Procedure[,] with Contemporaneous Request to Expand the

Record Under Rule 7 of the Rules Governing Section 2255” (“Rule 60(d) motion”).

3 R. at 243 (capitalization normalized).1 Solarin argued that the government had

committed fraud on the court in 2008 when it “injected the words ‘handmaidens’ or

‘puppets’ into the language of [its response to Solarin’s first § 2255 motion].” Id. at

251. “[T]hat improper and misleading language was attributed to Solarin when it was

created from whole cloth by the government to specifically direct the Court’s

attention away from the merits of Solarin[’]s claims, his evidence, and supporting

transcripts on the docket and in the government’s possession.” Id. at 252. Thus, in

his view, his first § 2255 motion “was not adjudicated but determined by deception.”

Id. at 253. As for his request to expand the record, Solarin attached several

documents, including a May 2014 declaration from a co-defendant asserting that

Solarin had not participated in the bank robbery.

Second, in June 2016, Solarin filed a counseled § 2255 motion attacking his

§ 924(c) conviction in the wake of the Supreme Court’s holding in Johnson v. United

States, 576 U.S. 591, 606 (2015), that the Armed Career Criminal Act’s residual

clause is unconstitutionally vague. Solarin asserted that he had been convicted under

§ 924(c)’s similarly worded residual clause, so his conviction was likewise

unconstitutional.

1 The cited portions of Rule 60(d) state that “[t]his rule [i.e., Federal Rule of Civil Procedure 60] does not limit a court’s power to . . . (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; . . . or (3) set aside a judgment for fraud on the court.” Solarin’s citation to Rule 7 of the Rules Governing § 2255 Proceedings presumably refers to Rule 7(a), which says, “If the motion is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the motion.” 4 Solarin’s Johnson-based § 2255 motion was “second or successive” and this

court had not granted him permission to file it at the time he presented it to the

district court. See 28 U.S.C. § 2255(h). But he had a motion for authorization

(MFA) pending in this court and he feared that the limitations period for successive

§ 2255 claims based on Johnson might run before this court issued its decision. He

therefore filed the motion in the district court and moved to stay those proceedings

until this court decided his MFA. The district court granted the stay, which

apparently applied to both the § 2255 motion and the Rule 60(d) motion.

Meanwhile, this court abated Solarin’s MFA. When the Supreme Court held

in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), that § 924(c)’s residual

clause is unconstitutionally vague, we lifted the abatement and granted the MFA.

The district court in turn lifted its stay and called for further briefing on the § 2255

motion in light of Davis.

Solarin soon filed a series of new motions with titles such as “Motion To

Supplement Defendant’s Section 2255 and Response,” R. at 426, and “Emergency

Motion For Summary Judgment,” R. at 460. We will refer to these as the

“post-abatement motions.” They variously asserted that the district court improperly

instructed the jury on the elements of aiding and abetting a § 924(c) violation, that it

improperly calculated his sentencing guidelines range, and that Solarin was actually

innocent (pointing again to the declaration from his co-defendant asserting he did not

participate in the robbery).

5 The district court disposed of all pending motions in a single order. As to the

Rule 60(d) motion, the court noted our statement in an unpublished disposition that

“[n]o such thing as a Rule 60(d)(1) motion actually exists.” McIntosh v. Pruitt,

832 F. App’x 540, 542 n.1 (10th Cir. 2020). Construing the motion as one under

Rule 60(b) instead, the court held it was effectively an unauthorized successive

§ 2255 motion over which it had no jurisdiction. It therefore denied the motion on

that basis. It likewise held that the post-abatement motions were unauthorized

successive § 2255 motions and dismissed them for lack of jurisdiction. Finally, it

denied the authorized § 2255 motion on its merits, pointing to recent decisions from

this court establishing that aiding and abetting bank robbery falls within § 924(c)’s

elements clause, so the unconstitutionality of the residual clause is immaterial.

Solarin timely filed a notice of appeal and moved for a COA from this court.

II. LEGAL STANDARD

This appeal may not proceed unless we grant a COA, see 28 U.S.C.

§ 2253(c)(1)(B), and we may not grant a COA unless Solarin “ma[kes] a substantial

showing of the denial of a constitutional right,” id. § 2253(c)(2). This means he

“must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). And he must make an extra showing for his Rule 60(d) and

post-abatement motions because the district court dismissed them on procedural

grounds, namely, lack of jurisdiction. So he must also show that “jurists of reason

6 would find it debatable whether the district court was correct in its procedural

ruling.” Id.

III. ANALYSIS

We will first address the Rule 60(d) motion, then the post-abatement motions,

and conclude with the authorized successive § 2255 motion.

A. Rule 60(d) Motion

If Solarin’s Rule 60(d) motion is, in substance, an attack on his conviction, it

is “subject to the authorization requirements of § 2255(h).” United States v. Baker,

718 F.3d 1204, 1206 (10th Cir. 2013). But “if the motion seeks to correct an error in

the previously conducted § 2255 proceeding itself, it is not characterized as a

successive motion,” and does not need our authorization. Id. (internal quotation

marks and brackets omitted). “[W]e look at the relief sought, rather than a pleading’s

title or its form, to determine whether it is a second-or-successive collateral attack on

a defendant’s conviction.” Id. at 1208.2

We have examined Solarin’s Rule 60(d) motion and we find that, in substance,

it attacks his conviction, rather than raising a genuine defect in prior § 2255

proceedings. Solarin complains about the puppets/handmaidens metaphor being

attributed to him instead of the government, but it was in no sense fraud on the court

in the § 2255 proceedings, for at least two reasons. First, it resulted from the district

2 For this reason, Solarin’s argument that the district court improperly recharacterized his Rule 60(d) motion as a Rule 60(b) motion is immaterial. The question is the motion’s substance, not its caption or the authority under which Solarin purportedly brought it. 7 court’s misunderstanding of which party proposed the metaphor, not from intent to

deceive. Cf. Thomas v. Parker, 609 F.3d 1114, 1120 (10th Cir. 2010) (describing the

high bar for establishing fraud on the court). Second, the misunderstanding was

irrelevant because the district court avoided the question of whether Colorado

officials were acting solely on the FBI’s behalf and went directly to the question of

whether the FBI had probable cause to arrest Solarin (or, in this case, to ask another

agency to arrest him). See Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985)

(holding that police officers may make an arrest based on probable cause developed

by other officers).

The basic purpose of Solarin’s Rule 60(d) motion is to continue asserting his

belief that his arrest violated the Fourth Amendment. This is further illustrated by

the documents he attaches (presumably the documents he wishes to make part of the

record through Rule 7 of the Rules Governing § 2255 Proceedings). These

documents largely relate to his Fourth Amendment claim, or to a simple assertion of

innocence.

In short, the Rule 60(d) motion is, in substance, an unauthorized second or

successive § 2255 motion. See Baker, 718 F.3d at 1208 (refusing to exempt a motion

nominally filed under Rule 60(d)(3) from § 2255(h)’s authorization procedure). The

district court correctly dismissed it for lack of jurisdiction. Jurists of reason could

not conclude otherwise, so we may not grant a COA as to that dismissal.

8 B. Post-Abatement Motions

The analysis as to the post-abatement motions is essentially the same. The

district court accurately identified them as raising new collateral attacks on Solarin’s

conviction—ones which this court had not authorized him to pursue. So, again, the

district court correctly dismissed those motions for lack of jurisdiction, and jurists of

reason could not conclude otherwise. Accordingly, we may not grant a COA as to

those dismissals.

C. Authorized Successive § 2255 Motion

We authorized Solarin to file a successive § 2255 motion arguing that he had

been convicted under § 924(c)’s residual clause, which the Supreme Court

invalidated in Davis. Addressing that argument on the merits, the district court held

that Solarin’s crime falls under § 924(c)’s elements clause, and so denied relief.

We need not examine the district court’s reasoning because Solarin does not

challenge it. To be sure, he says “he can make a substantial showing of the denial of

a constitutional right” as to “the district court’s denial of [his authorized § 2255

motion].” Aplt. Combined Opening Br. and Appl. for Certificate of Appealability

at 25. But he goes on to continue asserting fraud on the court, actual innocence, and

a Fourth Amendment violation, never mentioning the district court’s conclusion that

he was convicted under § 924(c)’s elements clause.

“[P]erfunctory complaints fail to frame and develop an issue sufficient to

invoke appellate review.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.

1994). Necessarily, then, Solarin has not “made a substantial showing of the denial

9 of a constitutional right” on this issue, 28 U.S.C. § 2253(c)(2), so we must deny a

COA.

IV. CONCLUSION

As to all issues before us, we deny Solarin’s application for a COA and we

dismiss this appeal. We grant his motion to proceed without prepayment of costs or

fees.

Entered for the Court

Timothy M. Tymkovich Chief Judge