Appellate Case: 23-3268 Document: 61-1 Date Filed: 02/13/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 13, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 23-3268 v. (D.C. Nos. 2:13-CR-20081-JAR-1, 2:17-CV-02339-JAR, ARRICK WARREN, 2:19-CV-02220-JAR-JPO, & 2:19-CV-02491-JAR) Defendant - Appellant. (D. Kan.) _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before McHUGH, BALDOCK, Circuit Judges, and LUCERO, Senior Circuit Judge. _________________________________
Arrick Warren is a federal prisoner who brought a pro se 28 U.S.C. § 2255
motion claiming he received ineffective assistance of counsel from his defense
attorney. The district court denied that claim. Soon after, counsel entered an
appearance on Warren’s behalf and successfully moved to supplement his original
§ 2255 motion with a new claim that Kansas federal prosecutors intruded into the
attorney-client relationship by listening to recordings of phone calls Warren made
with his previous attorney while in pretrial detention. The district court later denied
that second claim on the merits.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-3268 Document: 61-1 Date Filed: 02/13/2025 Page: 2
Still represented by counsel, Warren now applies for a certificate of
appealability (COA) so he can challenge the district court’s denial of both his § 2255
claims. We deny a COA and dismiss this matter.
I. BACKGROUND & PROCEDURAL HISTORY
We begin with a relatively brief overview of this matter, saving additional
details for the analysis section below.
A. Indictment, Guilty Plea, and Sentence
In December 2013, a grand jury indicted Warren on four drug-related counts.
He eventually chose to plead guilty without a plea agreement. The district court
accepted the plea, held a four-day sentencing hearing on contested matters related to
sentencing guidelines calculations, ruled against Warren on all those matters, and
imposed a 180-month sentence.
Warren appealed some of the district court’s sentencing decisions, but this
court affirmed. See United States v. Warren, 636 F. App’x 450, 453–55 (10th Cir.
2016).
B. Section 2255 Proceedings
1. The Ineffective Assistance Claim
In June 2017, following his unsuccessful direct appeal, Warren filed a pro se
§ 2255 motion. He alleged he received ineffective assistance of counsel (IAC)
because his attorney allegedly never explained how the sentencing guidelines could
be applied to enhance his sentence.
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In July 2018, while Warren’s § 2255 motion was still pending, the district
court entered a standing order appointing the Federal Public Defender for the District
of Kansas to represent any federal defendant who may have a postconviction claim
based on Kansas federal prosecutors’ access to recordings of communications
between detainees at the CCA-Leavenworth (a.k.a. CoreCivic) facility and their
attorneys. See United States v. Carter, 429 F. Supp. 3d 788, 805 & n.45 (D. Kan.
2019); see also id. at 832–66 (summarizing Kansas federal prosecutors’ gathering and
use of video and telephone recordings from the CCA facility), vacated in part on
other grounds, No. 16-20032-02-JAR, 2020 WL 430739 (D. Kan. Jan. 28, 2020).
In January 2019, with Warren’s § 2255 motion still pending, the Kansas FPD
e-mailed the district court announcing the FPD intended “to amend Mr. Warren’s
2255 in the near future.” R. vol. I at 1016. In April 2019—the FPD still not having
entered an appearance or moved to amend Warren’s § 2255 motion—the district court
ruled on and denied the IAC claim, denied a COA, and entered final judgment.
2. The Motion to Supplement and the First Appeal of the Ineffective Assistance Claim
In May 2019, the FPD entered an appearance on Warren’s behalf and filed a
“Motion to Supplement Mr. Warren’s pro se § 2255 Motion.” R. vol. I at 941; see
also Douglas v. Workman, 560 F.3d 1156, 1187–95 (10th Cir. 2009) (per curiam)
(establishing a multi-factor analysis that may permit a defendant to “supplement” an
original postconviction petition with a new claim, despite entry of judgment on the
original petition and inability to satisfy the standard for second or successive claims).
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The motion asserted that the government had listened to Warren’s attorney-client
phone calls while he was a pretrial detainee housed at CCA-Leavenworth. Warren
therefore sought to add, via supplementation, a § 2255 claim that the government had
intentionally intruded on his attorney-client relationship in violation of the Sixth
Amendment.
In June 2019, while this motion was still pending, Warren filed a pro se notice
of appeal from the April 2019 denial of his original § 2255 motion (i.e., the IAC
claim). This court abated the appeal in light of the pending motion to supplement.
In July 2019, the district court granted the motion to supplement. The court
stated, “Defendant’s § 2255 motion is considered reopened only to allow filing of the
Sixth Amendment claim that is the subject of [the motion to supplement].” R. vol. I
at 1020. However, the district court did not formally reopen the original § 2255
proceeding. It left that judgment intact and opened a new case in which the Sixth
Amendment intentional intrusion claim would be litigated.
This court then entered an order in Warren’s pending-but-abated appeal,
requiring Warren to address whether the court still had jurisdiction. The FPD
responded with a voluntary motion to dismiss asserting that this court no longer had
jurisdiction in light of the district court’s order, but purporting to preserve Warren’s
IAC claim for later appeal, following resolution of the intentional intrusion claim.
This court entered a text-only order granting that motion without comment.
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3. This Appeal
In November 2023, the district court denied Warren’s and many other
defendants’ intentional intrusion claims, and likewise denied a COA. Warren then
filed a notice of appeal from that judgment and from the district court’s April 2019
judgment on his IAC claim. The Clerk of Court ordered further briefing from both
sides on whether the appeal of the April 2019 judgment was timely. The Clerk then
referred the jurisdictional issue to this panel and further allowed Warren to file the
COA application now at issue.
II. APPELLATE JURISDICTION
A timely notice of appeal is jurisdictional in a civil case, Bowles v. Russell,
551 U.S. 205, 214 (2007), and § 2255 proceedings are considered civil cases for
purposes of the appellate rules, see United States v. Pinto, 1 F.3d 1069, 1070
(10th Cir. 1993). Therefore, Warren’s deadline to appeal was sixty days from
judgment. See Fed. R. App. P. 4(a)(1)(B)(i) (establishing a sixty-day deadline to
appeal from a civil judgment where the United States is a party). He was required
to file his notice of appeal before this deadline, else we do not have jurisdiction
to consider his COA application. See Watkins v. Leyba, 543 F.3d 624, 625–26
(10th Cir. 2008).
Warren’s January 3, 2024 notice of appeal was indisputably timely as to the
district court’s November 14, 2023 judgment (disposing of the intentional intrusion
claim) because less than sixty days had elapsed from entry of that judgment. The
question is whether that same notice was timely as to the April 25, 2019 judgment
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disposing of the IAC claim, which the district court never vacated despite granting
the motion to supplement.
In these circumstances, we treat the district court’s decision to grant the
motion to supplement as having vacated the April 2019 judgment, even if the district
court never formally took that step. The district court stated that “Defendant’s
§ 2255 motion is considered reopened only to allow filing of the Sixth Amendment
claim that is the subject of [the motion to supplement].” R. vol. I at 1020. From the
district court’s perspective, the portion of the sentence beginning with “only” was
perhaps most important, restricting the scope of further proceedings. From our
perspective, the first part of the sentence is most important: “Defendant’s § 2255
motion is considered reopened.” It convinces us that the district court intended to
strip its earlier judgment of its final character. Cf. Utah v. Norton, 396 F.3d 1281,
1286 (10th Cir. 2005) (“A final judgment is one that terminates all matters as to all
parties and causes of action.” (internal quotation marks omitted)).
The fact that the district court opened a new civil proceeding to adjudicate the
supplemental claim (i.e., the intentional intrusion claim) does not convince us
otherwise. This appears to have been nothing more than an administrative device to
help the court organize the numerous claims then being filed by former CCA
detainees.
We therefore conclude that the relevant final judgment for both claims (IAC
and intentional intrusion) was the November 2023 judgment. In consequence, this
appeal was timely as to both claims, and we proceed to the COA analysis.
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III. LEGAL STANDARD
“Unless a circuit justice or judge issues a [COA], an appeal may not be taken
to the court of appeals from . . . the final order in a proceeding under section 2255.”
28 U.S.C. § 2253(c)(1)(B). A COA requires “a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This means Warren “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).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Warren requests a COA on the question of whether the district court properly
denied his IAC claim without holding an evidentiary hearing.
A. Additional Background
1. The Change-of-Plea Hearing
At the change-of-plea hearing, the district court proceeded through the
required colloquy, including the possible maximum sentences (sixty years as to some
of the counts, twenty years as to the others). The court also confirmed that Warren
and his attorney, Ms. Dionne Scherff, had “discussed how the sentencing commission
guidelines might apply to [his] case.” R. vol. I at 376. And the court confirmed
Warren understood that:
• “depending on the outcome of the investigation as to the amount of drugs involved, [he] might be subject to a mandatory minimum sentence,” id. at 374;
• “the court [would] not be able to determine the guideline sentence applicable to [his] case until after a presentence investigation report has been completed, and [Warren] and the government have had an
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opportunity to challenge the facts reported by the probation officer,” id. at 376–77;
• “there’s no limitation on the information the court could consider at the time of sentencing concerning [his] background, character, and conduct, provided that the information was reliable,” including “uncharged related criminal activity,” id. at 377, 378; and
• “if the sentence is more severe than [he] expected, [he would] still be bound by [his] plea and [would] have no right to withdraw it,” id. at 378–79.
After all this (and other standard parts of the colloquy), Warren reaffirmed his
decision to plead guilty without a plea agreement, and then signed the plea petition in
open court.
Next, the court asked the government to read the factual basis of the charges
into the record. The government began by noting that Warren “reserve[d] the right to
argue relevant conduct and other issues relating to the accuracy of the facts contained
herein.” Id. at 381. The government then recited findings from its investigation,
including the search of a house Warren rented that yielded crack cocaine (i.e.,
cocaine base), powder cocaine, large amounts of cash, a handgun, and a photograph
allegedly showing Warren “holding a large stack of currency and appearing to have a
firearm in his waist-band.” Id. at 383.
After this recitation, the court asked Warren if he had read the government’s
factual basis ahead of the hearing. Before Warren could answer, Scherff (Warren’s
attorney) interjected that Warren “did not get a copy of this [i.e., the written version
of the government’s factual basis]” before the hearing. Id. at 385. The government
responded that it had sent a plea agreement to Scherff a couple of days earlier that
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included an identical factual basis. Based on this, the court asked Warren, “[A]re you
admitting to the court that you did, in fact, do exactly what that factual basis
indicates that you did . . . ?” Id. at 386. Warren responded by requesting an
opportunity to consult with Scherff, which the court granted.
Following Warren’s consultation with Scherff, the court re-asked whether
Warren was admitting the facts set forth in the government’s statement of the factual
basis. Scherff responded on Warren’s behalf that she had indeed received an e-mail
from the government the day before with a proposed plea agreement, but Warren “has
elected[,] in order to preserve all of his appeal rights and everything, to plead without
a plea agreement.” Id. at 387. Scherff specifically stated that Warren was reserving
the right to contest possession of the handgun (which was not part of any of the
charges). In the same vein, Scherff insisted that the photograph the government
recovered was not a photograph of Warren. Scherff also stated that Warren would
contest any conversion of cash to drug quantities.
The court informed Warren that the issues his attorney was raising would be
resolved at sentencing, and that the court’s resolution could affect his sentence. The
court stated, “[T]here might be a firearm enhancement or things of that nature,” and
more generally, “[I]f I find the government is accurate, you may face certain
sentencing enhancements,” and it confirmed that Warren understood as much. Id.
at 391. The court also later confirmed that Warren’s decision to plead guilty was his
own, and that he was “satisfied with the advice and services of [his] attorney.” Id.
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at 394. Finally, after discussion about additional unrelated matters, the court
accepted the guilty plea.
2. Sentencing & Appeal
The presentence investigation report (PSR) recommended calculating Warren’s
guidelines range by converting the quantity of powder cocaine into its crack cocaine
equivalent, as the guidelines allow when the defendant intended to transform the
powder into crack. The PSR further recommended treating the cash as the equivalent
of crack cocaine, as allowed by the guidelines when money is related to the
distribution of crack cocaine. Finally, the PSR attributed possession of the handgun
to Warren, and increased his guidelines calculation accordingly. This and other
factors led to a total offense level of 35, and Warren had a criminal history category
of III, yielding a guidelines recommendation of 210–62 months.
The district court held a four-day sentencing hearing which mostly comprised
taking evidence about the contested matters: intent to transform powder cocaine into
crack, the connection between the cash and distribution of crack cocaine, and
possession of the handgun. At the outset of that hearing, the court confirmed with
Warren that Scherff had reviewed the PSR with him and advised him about possible
sentencing outcomes based on the information in the PSR.
Following the evidence, the district court ruled against Warren on each of the
contested factual matters. For reasons not relevant here, however, the court ruled that
Warren’s total offense level was 33, not 35, so his guidelines range was 168–210
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months. The court sentenced Warren to 180 months on each count, running
concurrently. 1
3. Section 2255 Proceedings
After his unsuccessful appeal on sentencing issues, Warren filed a pro se
§ 2255 motion alleging that Scherff had been ineffective at the change-of-plea phase
because she failed to advise him “how the federal guidelines would affect his case.”
R. vol. I at 854. Specifically, Warren alleged:
• “There was no explanation on the conversion of the seized money to crack for sentencing purposes whatsoever.” Id.
• “Neither was it explained that the powder cocaine could have been converted to crack for sentencing purposes.” Id. at 855 (emphasis removed).
• “There was never any explanation, even in the most simplistic terms, that a firearm that was not even remotely related to the offense, could have been attributed to Warren and the offense.” Id.
• “Neither was there any explanation the guidelines could be enhanced for Maintaining a Residence for Drug Distribution . . . .” Id. at 856.
He further alleged that, if he had known these were possibilities, he would have gone
to trial instead of pleading guilty. As for his statements at the change-of-plea
hearing, he alleged that those statements were based solely on what he knew at the
time, whereas he did not realize Scherff’s ineffectiveness until he reviewed the PSR.
The district court ruled that “the motion and the files and records of the case
conclusively show[ed] that [Warren was] entitled to no relief,” § 2255(b), and
1 Later, retroactive guidelines amendments led to resentencing at 161 months. 11 Appellate Case: 23-3268 Document: 61-1 Date Filed: 02/13/2025 Page: 12
accordingly did not hold an evidentiary hearing, see id. For the district court, the key
principle was that “‘[t]he representations of the defendant [at a plea hearing] . . .
constitute a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity.’” R. vol. I at 924
(quoting Blackledge v. Allison, 431 U.S. 63, 73–74 (1977)). The district court
concluded that Warren’s and his attorney’s statements at the change-of-plea hearing,
followed by Warren’s failure to say anything about the relevant issues during the
sentencing hearing (despite claiming that by then he knew his attorney had failed to
advise him properly), show he could not overcome Blackledge’s “strong presumption
of verity.” The district court therefore denied the § 2255 motion and declined to
grant a COA.
B. COA Analysis
Warren argues that reasonable jurists could debate whether the district court
properly resolved his IAC claim without an evidentiary hearing. Because this is a
procedural ruling, the question for COA purposes is whether “jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
At the merits phase, this court would apply the abuse-of-discretion standard to
review the district court’s decision to resolve the claim on the papers alone. See
United States v. Weeks, 653 F.3d 1188, 1200 (10th Cir. 2011); see also Fleming v.
Evans, 481 F.3d 1249, 1257 (10th Cir. 2007) (incorporating the relevant standard of
review into the COA question of whether reasonable jurists could disagree). We do
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not believe jurists of reason would debate whether the district court abused its
discretion when it concluded that the record created by the change-of-plea and
sentencing proceedings, as detailed above, “conclusively show[ed] that [Warren was]
entitled to no relief,” § 2255(b), and therefore not entitled to a hearing on his IAC
claim. We accordingly deny a COA on this claim.
V. INTENTIONAL INTRUSION INTO THE ATTORNEY-CLIENT RELATIONSHIP
Warren’s intentional intrusion claim relied solely on the intrusion itself as the
basis for relief. In other words, he did not argue that the alleged intrusion into his
attorney-client communications affected the outcome of his case in any way. He
argued instead that such intrusion is a structural error that requires relief regardless of
the effect on the defendant’s case.
About ten months before Warren noticed his appeal, this court held that
post-plea intrusions into attorney-client communications do not create a presumption
of prejudice, so defendants must show actual prejudice to obtain relief based on such
intrusions. See United States v. Orduno-Ramirez, 61 F.4th 1263, 1276 (10th Cir.),
cert. denied, 144 S. Ct. 388 (2023). 2 Part of Warren’s supplemental § 2255 claim
involved post-plea intrusions. Warren believes Orduno-Ramirez was wrongly
2 This court has since held that the defendant must show prejudice regardless of when the alleged intrusion occurred (e.g., pre-plea or post-plea, pre-trial or post-trial, etc.). See United States v. Hohn, 123 F.4th 1084, 1087–88 (10th Cir. 2024) (en banc).
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decided but concedes that it forecloses relief here. He includes the claim explicitly
for preservation purposes only. 3
In this light, we deny a COA on his intentional intrusion claim.
VI. CONCLUSION
We deny a COA and dismiss this matter.
Entered for the Court
Carolyn B. McHugh Circuit Judge
3 Warren’s supplemental § 2255 claim also alleged pre-plea intrusions. The district court dismissed this portion of the claim following our holding in United States v. Spaeth, 69 F. 4th 1190, 1213 (10th Cir. 2023), cert. denied, 144 S. Ct. 1355 (2024), that “[w]hen a defendant voluntarily and knowingly pleads guilty, the defendant acknowledges that unconstitutional conduct preceding the guilty plea is irrelevant to the admission of factual guilt.” Warren does not seek a COA to challenge that ruling.