United States v. Webb

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 20, 2022
• Docket: 21-3091
• Status: Unpublished

Opinion

Appellate Case: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 20, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-3091 (D.C. Nos. 5:11-CR-40078-JAR-1, VIROK D. WEBB, 5:17-CV-04040-JAR-JPO & 2:19-CV-02491-JAR-JPO) Defendant - Appellant. (D. Kan.) _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, MATHESON, and EID, Circuit Judges. _________________________________

Virok D. Webb appeals the district court’s denial of leave to amend his

28 U.S.C. § 2255 motion. The district court concluded that Webb’s proposed claim

was untimely and that amendment was futile because he lacked standing to bring his

proposed claim. We granted a certificate of appealability (COA) on the timeliness

and standing issues. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(c),

we affirm the district court’s judgment on alternative grounds. Because we affirm on

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 2

alternative grounds, we do not consider or address the district court’s ruling that

Webb lacks standing to bring his proposed Sixth Amendment claim. We affirm the

district court’s denial of leave to amend as futile because Webb’s proposed Sixth

Amendment claim is not cognizable in a federal habeas proceeding. This conclusion

obviates any need to consider whether Webb’s proposed claim was timely under

§ 2255(f)(4) or any question of standing.

I

Webb was charged in a three-count superseding indictment with conspiracy to

distribute crack cocaine, conspiracy to distribute powder cocaine, and murder to

prevent a person from providing information concerning a federal crime to a law

enforcement officer. He pleaded guilty to the crack-conspiracy count, and the

government dismissed the other conspiracy and murder counts. Webb later sought to

withdraw his guilty plea, but the district court denied his request. On August 27,

2015, the district court entered a judgment of conviction and sentenced Webb to 360

months in prison followed by 10 years of supervised release. Webb appealed the

denial of his motion to withdraw his guilty plea, and on June 2, 2016, we affirmed.

See United States v. Webb, 651 F. App’x 740, 741 (10th Cir. 2016).

Webb’s conviction became final 90 days later, on August 31, 2016, when the

time for him to seek certiorari review expired. See S. Ct. R. 13.1; United States v.

Prows, 448 F.3d 1223, 1227 (10th Cir. 2006). He had one year from that date, until

August 31, 2017, to file a § 2255 motion. See 28 U.S.C. § 2255(f)(1). On June 5,

2 Appellate Case: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 3

2017, Webb timely filed a pro se § 2255 motion, claiming his trial and appellate

counsel rendered ineffective assistance.

Meanwhile, in separate judicial proceedings (“the Black litigation”), the

district court learned that the government had accessed recorded conversations

between attorneys and their clients confined at the same prison where Webb was

incarcerated. See United States v. Carter, 995 F.3d 1222, 1224 (10th Cir. 2021). The

district court conducted an extensive investigation in the Black litigation and directed

the government to produce all recordings in its possession. See id. The court also

entered a standing order appointing the Federal Public Defender (FPD) to represent

any defendant from the District of Kansas with an alleged Sixth Amendment

violation stemming from government access to recordings of attorney-client

conversations. See Standing Order No. 18-3 (D. Kan. July 17, 2018).

On July 9, 2019—more than two years after he filed his pro se § 2255

motion—Webb moved to amend his § 2255 motion to add a Sixth Amendment claim

based on the government obtaining recordings of his calls with his attorney while at

the prison. See Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995)

(“[A]bsent a countervailing state interest,” “a prosecutor’s intentional intrusion into

the attorney-client-relationship constitutes . . . a per se violation of the Sixth

Amendment.”). He was represented by the FPD, and his original § 2255 motion was

still pending with the district court. After Webb renewed his motion to amend, the

district court consolidated his case with numerous other § 2255 motions raising

similar Sixth Amendment claims arising out of the government’s access to the

3 Appellate Case: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 4

recordings. Aplt. Suppl. R. at 1488-89; In re CCA Recordings 2255 Litig. v. United

States, No. 19-cv-2491-JAR-JPO (D. Kan. Aug. 21, 2019), ECF No. 1 at 3-4

(including Webb’s case in the consolidated § 2255 proceedings).1

The district court denied Webb leave to amend. The court concluded that his

proposed Sixth Amendment claim was untimely because it was filed beyond the

one-year deadline of § 2255(f)(1), and it did not relate back to his original filing date

because it asserted a new Sixth Amendment claim that was separate from and

unrelated to the ineffective-assistance-of-counsel claims presented in his initial

motion, see United States v. Roe, 913 F.3d 1285, 1297 (10th Cir. 2019) (explaining

that proposed amended claims may relate “back only when the claims added by

amendment arise from the same core facts as the timely filed claims, and not when

the new claims depend upon events separate in both time and type from the originally

raised episodes” (internal quotation marks omitted)). The court also ruled that

amendment would be futile because the Sixth Amendment claim was subject to

dismissal for lack of standing. The court reasoned that Webb already had been

convicted and sentenced before the government obtained the recordings of his calls in

May 2016, so he could not establish that his confinement was caused by the alleged

1 The parties move to supplement the record on appeal with numerous public court filings from the Black litigation, the consolidated § 2255 proceedings, and other proceedings. We construe the motions as requesting that we take judicial notice of the relevant material, and so construed, we grant the motions. For ease of reference, we cite those documents as the parties have presented them to us in their respective supplemental appendices.

4 Appellate Case: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 5

Sixth Amendment violation, characterizing its holding as a lack of standing. The

district court denied a COA, and Webb sought to appeal.2

Webb filed an application in this court for a COA, which we granted as to two

issues: whether the proposed amendment was timely under § 2255(f)(4),3 and

whether Webb would have standing to raise his proposed amended claim.4

Having now carefully considered the parties’ arguments, the district court’s

decisions in both this case and in the Black litigation, as well as the relevant legal

authorities, we find it unnecessary to address either of the two issues upon which this

court granted a COA. Instead, for the reasons stated below, we affirm the denial of

Webb’s motion to amend on the alternative ground that it would have been futile to

allow him to amend because his proposed claim is not cognizable in a federal habeas

proceeding. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)

2 The district court denied the balance of Webb’s § 2255 motion; those issues are not before us. 3 Under § 2255(f)(4), the one-year limitation period for filing a § 2255 motion runs from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 4 We also granted a COA to consider whether the proposed amendment was timely under § 2255(f)(2), which delays accrual of the one-year limitation period for filing a § 2255 motion until “the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action.” In his reply brief, Webb abandons any argument under § 2255(f)(2), see Reply Br. at 8 n.2, so we do not consider any issue related to a government-imposed impediment to filing. 5 Appellate Case: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 6

(“[W]e may affirm on any basis supported by the record, even if it requires ruling on

arguments not reached by the district court or even presented to us on appeal.”).

II

“Pursuant to the provisions of Fed. R. Civ. P. 15(a)(2), a movant may file an

amended § 2255 motion at any time during post-conviction proceedings with leave of

court.” Roe, 913 F.3d at 1296.5 However, “the district court may dismiss without

granting leave to amend when it would be futile to allow the plaintiff an opportunity

to amend his [motion].” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219

(10th Cir. 2006).

Webb claims the government obtained the recordings of his calls on May 20,

May 24, and May 25, 2016. See Aplt. Opening Br. at 5; see also Aplt. Suppl. R. at

52-57 (emails with links to call recordings). A supplemental status report filed in the

Black litigation confirms that “no [other] calls or derivative materials were located

for Webb.” Aplt. Suppl. R. at 1665. And the FPD conceded that, after reviewing the

relevant evidence, it could not establish that anyone had accessed the recordings

before Webb was sentenced on August 27, 2015. See id. at 1283. Under these

circumstances, where the alleged Sixth Amendment violation is predicated on events

that occurred after he was convicted and sentenced, Webb’s claim is not cognizable

in a federal habeas proceeding. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir.

1998) (holding petitioner’s claim was not cognizable in a federal habeas proceeding

5 Federal Rule of Civil Procedure 15 applies to § 2255 motions. See Roe, 913 F.3d at 1296 n.14. 6 Appellate Case: 21-3091 Document: 010110756037 Date Filed: 10/20/2022 Page: 7

because it did not focus on “the judgment which provides the basis for his

incarceration” or “revolve [around] trial error but about matters that occurred

subsequently”); see also United States v. Dago, 441 F.3d 1238, 1248-49 & n.5

(10th Cir. 2006) (holding claim based on delay in post-conviction proceedings did

not warrant relief in federal habeas, which is “limited to examining the events that

occurred in the proceedings leading up to the petitioner’s conviction”); Richie v.

Sirmons, 563 F. Supp. 2d 1250, 1298-99 (N.D. Okla. 2008) (holding claim alleging

constitutional violation that occurred during petitioner’s direct appeal was not

cognizable in federal habeas proceedings because it challenged the constitutionality

of the appellate court’s decision, not “the judgment which provides the basis for his

incarceration”). Webb had been convicted and sentenced by the time the alleged

Sixth Amendment violation occurred. As such, his proposed claim would not have

been cognizable in a habeas proceeding, it would have been subject to dismissal, and

thus amendment would have been futile. Accordingly, we affirm the denial of

Webb’s motion to amend on this alternative ground, and we do not reach any other

issues.

III

The district court’s judgment is affirmed. The parties’ motions to supplement

the record, which we construe as motions to take judicial notice, are granted.

Entered for the Court

Timothy M. Tymkovich Circuit Judge