Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 24-6114 v. (D.C. Nos. 5:24-CV-00089-R & 5:21-CR-00161-R-1) TERRENCE MICHAEL TAYLOR, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges. _________________________________
This matter is before the court on Terrence Taylor’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
He seeks a COA so he can appeal the denial of his 28 U.S.C. § 2255 motion. See
28 U.S.C. § 2253(c)(1)(B) (providing no appeal is allowed from a “final order in
a proceeding under section 2255” unless the movant first obtains a COA).
Because he has not “made a substantial showing of the denial of a constitutional
right,” id. § 2253(c)(2), this court denies his request for a COA and dismisses
this appeal. Furthermore, because Taylor has not advanced on appeal “a reasoned,
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 2
nonfrivolous argument on the law and facts in support of the issues raised,” this court
denies his request to proceed in forma pauperis and orders him to immediately remit the
entirety of the appellate filing fee. DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991).
Taylor pleaded guilty to two counts of being a felon in possession of ammunition
and one count of being a felon in possession of firearms, all in violation of 18 U.S.C.
§ 922(g)(1). The relevant background is set out in this court’s opinion on direct appeal.
See United States v. Taylor, 86 F.4th 853, 854-55 (10th Cir. 2023), cert. denied, 144 S.
Ct. 2664 (2024). On appeal, Taylor argued the weapons charges were multiplicitous in
violation of the Double Jeopardy Clause. Id. at 854. This court concluded Taylor’s guilty
plea waived the double jeopardy issue because the “face of the record” did not
conclusively prove the counts of conviction were multiplicitous. Id. at 857-59.
Taylor thereafter filed the instant § 2255 motion, raising the following six issues:
(1) “ineffective assistance of counsel, Julia Summers”; (2) “miscarriage of justice
exception”; (3) “conviction on planted/fabricated evidence”; (4) “fraud on the Court”;
(5) “tainted conviction”; and (6) ‘ineffective assistance of counsel, Joe Wells.” United
States v. Taylor, Nos. CR-21-161, CIV-24-89, 2024 WL 2786936, at *1 (W.D. Okla.
May 30, 2024). The district court concluded Taylor’s grounds two, three, four, and five
were procedurally barred by Taylor’s guilty pleas. Id. at *2; see also Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a break in the chain of
events which has preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with which he is
2 Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 3
charged, he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.”). The district court
concluded Taylor’s ineffective-assistance-of-counsel claim against Wells, the attorney
that represented Taylor at sentencing, failed on the basis set out by this court on direct
appeal: Wells could not have been ineffective in failing to raise a multiplicity claim at
sentencing because Taylor’s guilty pleas waived such claim. Taylor, 2024 WL 2786936,
at *3.
Finally, the district court concluded Taylor’s ineffective-assistance-of-counsel
claim against Summers, Taylor’s standby counsel through the guilty plea proceedings,
failed for two reasons. First, when Taylor pleaded guilty, he was representing himself.
See id. “[A] defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of effective assistance of counsel.”
Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (quotation omitted). The presence of
standby counsel does not change this result. McKaskle v. Wiggins, 465 U.S. 168, 183
(1984). This is especially true when a defendant like Taylor maintained control of his
own defense. Lee v. Hines, 125 F. App’x 215, 217 (10th Cir. 2004) (unpublished
disposition cited solely for its persuasive value). Second, even assuming Taylor could
assert an ineffective assistance claim against Summers, the district court concluded such
a claim would fail under the standard set out by the Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Taylor, 2024 WL 2786936, at *3-4.
Taylor seeks a COA so he can appeal the district court’s denial of his
§ 2255 motion. The granting of a COA is a jurisdictional prerequisite to an appeal
3 Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 4
from the denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 335–36
(2003). To be entitled to a COA, Taylor 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 “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, 537 U.S. at 336 (quotations omitted). In evaluating
whether he has satisfied this burden, we undertake “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although he 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).
This court has undertaken a review of Taylor’s combined appellate brief
and request for COA, the district court’s order, and the entire record before this
court pursuant to the framework set out by the Supreme Court in Miller-El. That
review demonstrates Taylor is not entitled to a COA.
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Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 24-6114 v. (D.C. Nos. 5:24-CV-00089-R & 5:21-CR-00161-R-1) TERRENCE MICHAEL TAYLOR, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges. _________________________________
This matter is before the court on Terrence Taylor’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
He seeks a COA so he can appeal the denial of his 28 U.S.C. § 2255 motion. See
28 U.S.C. § 2253(c)(1)(B) (providing no appeal is allowed from a “final order in
a proceeding under section 2255” unless the movant first obtains a COA).
Because he has not “made a substantial showing of the denial of a constitutional
right,” id. § 2253(c)(2), this court denies his request for a COA and dismisses
this appeal. Furthermore, because Taylor has not advanced on appeal “a reasoned,
* 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: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 2
nonfrivolous argument on the law and facts in support of the issues raised,” this court
denies his request to proceed in forma pauperis and orders him to immediately remit the
entirety of the appellate filing fee. DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991).
Taylor pleaded guilty to two counts of being a felon in possession of ammunition
and one count of being a felon in possession of firearms, all in violation of 18 U.S.C.
§ 922(g)(1). The relevant background is set out in this court’s opinion on direct appeal.
See United States v. Taylor, 86 F.4th 853, 854-55 (10th Cir. 2023), cert. denied, 144 S.
Ct. 2664 (2024). On appeal, Taylor argued the weapons charges were multiplicitous in
violation of the Double Jeopardy Clause. Id. at 854. This court concluded Taylor’s guilty
plea waived the double jeopardy issue because the “face of the record” did not
conclusively prove the counts of conviction were multiplicitous. Id. at 857-59.
Taylor thereafter filed the instant § 2255 motion, raising the following six issues:
(1) “ineffective assistance of counsel, Julia Summers”; (2) “miscarriage of justice
exception”; (3) “conviction on planted/fabricated evidence”; (4) “fraud on the Court”;
(5) “tainted conviction”; and (6) ‘ineffective assistance of counsel, Joe Wells.” United
States v. Taylor, Nos. CR-21-161, CIV-24-89, 2024 WL 2786936, at *1 (W.D. Okla.
May 30, 2024). The district court concluded Taylor’s grounds two, three, four, and five
were procedurally barred by Taylor’s guilty pleas. Id. at *2; see also Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a break in the chain of
events which has preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with which he is
2 Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 3
charged, he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.”). The district court
concluded Taylor’s ineffective-assistance-of-counsel claim against Wells, the attorney
that represented Taylor at sentencing, failed on the basis set out by this court on direct
appeal: Wells could not have been ineffective in failing to raise a multiplicity claim at
sentencing because Taylor’s guilty pleas waived such claim. Taylor, 2024 WL 2786936,
at *3.
Finally, the district court concluded Taylor’s ineffective-assistance-of-counsel
claim against Summers, Taylor’s standby counsel through the guilty plea proceedings,
failed for two reasons. First, when Taylor pleaded guilty, he was representing himself.
See id. “[A] defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of effective assistance of counsel.”
Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (quotation omitted). The presence of
standby counsel does not change this result. McKaskle v. Wiggins, 465 U.S. 168, 183
(1984). This is especially true when a defendant like Taylor maintained control of his
own defense. Lee v. Hines, 125 F. App’x 215, 217 (10th Cir. 2004) (unpublished
disposition cited solely for its persuasive value). Second, even assuming Taylor could
assert an ineffective assistance claim against Summers, the district court concluded such
a claim would fail under the standard set out by the Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Taylor, 2024 WL 2786936, at *3-4.
Taylor seeks a COA so he can appeal the district court’s denial of his
§ 2255 motion. The granting of a COA is a jurisdictional prerequisite to an appeal
3 Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 4
from the denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 335–36
(2003). To be entitled to a COA, Taylor 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 “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, 537 U.S. at 336 (quotations omitted). In evaluating
whether he has satisfied this burden, we undertake “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although he 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).
This court has undertaken a review of Taylor’s combined appellate brief
and request for COA, the district court’s order, and the entire record before this
court pursuant to the framework set out by the Supreme Court in Miller-El. That
review demonstrates Taylor is not entitled to a COA. Taylor’s appellate brief
does not address the district court’s conclusion that each of the claims related to
events occurring before his entry of guilty pleas, claims two, three, four, and five,
was waived under the rule set out by the Supreme Court in Tollett, 411 U.S. at 267.
In any event, the district court’s conclusion in that regard is not reasonably subject
to debate. Likewise, Taylor ignores the impact of this court’s ruling on direct
appeal—that his multiplicity claim is waived by the entry of his guilty plea—as
4 Appellate Case: 24-6114 Document: 22-1 Date Filed: 09/11/2024 Page: 5
to his ineffective assistance claim against Wells. Given the waiver, Wells’s
“failure” to raise the issue at sentencing could not have possibly prejudiced
Taylor. And, in a similar vein, Taylor’s appellate briefing of his ineffective
assistance claim against Summers fails to address a core aspect of the district
court’s ruling: Taylor was representing himself pro se, while Summers’s status
was limited to that of standby counsel. By failing to address this critical aspect of
the district court ruling, Taylor leaves this court with no basis to debate the
district court’s ruling. Finally, the district court did not abuse its discretion in
declining to hold an evidentiary hearing, United States v. Clingman, 288 F.3d
1183, 1187 n.4 (10th Cir. 2002), because Taylor’s “motion and the files and
records of the case conclusively show that [he] is entitled to no relief.” 28 U.S.C.
§ 2255(b). Accordingly, Taylor’s request for a COA is DENIED and this appeal
is DISMISSED.
Entered for the Court
Michael R. Murphy Circuit Judge