United States v. Hartman, 10th Cir. (2012)
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United States Court of Appeals
Tenth Circuit
June 26, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
PlaintiffAppellee,
v.
DAVID LEROY HARTMAN,
No. 11-1452
(D.C. Nos. 1:03-CR-00582-REB-1,
1:07-CV-01921-REB)
(D. Colorado)
DefendantAppellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Appellant, a federal prisoner, seeks a certificate of appealability to appeal
the district courts dismissal of his 2255 habeas petition. In 2004, a federal jury
found Appellant guilty of possession of a firearm by a felon, possession with
intent to distribute a controlled substance (cocaine base and methamphetamine),
possession of a firearm in furtherance of a drug-trafficking crime, and use of
anothers identification to commit unlawful activity. The district court sentenced
him to prison terms of 180 months and 12 months, to run concurrently, and a term
This order is not binding precedent except under the doctrines of law of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.
of 60 months to run consecutively. The five-year consecutive sentence Appellant
received was the mandatory minimum for possession of a firearm in furtherance
of a drug crime pursuant to 18 U.S.C. 924(c). The government added this
charge in a superceding indictment after telling Appellant if he failed to accept
the proffered plea agreement, it would charge him with additional crimes. On
appeal, this court affirmed Appellants conviction and sentence. See United
States v. Hartman, 194 F. Appx 537 (10th Cir. 2006). Appellant did not seek
certiorari review.
Appellant filed this 2255 motion, which raises the following claims: (1)
this court erroneously affirmed on appeal the district courts denial of Appellants
motion to suppress; (2) this court erroneously affirmed the district courts denial
of Appellants motion to sever counts; (3) Appellant received ineffective
assistance of counsel at trial; and (4) Appellant was improperly convicted and
sentenced based on various errors. After numerous proceedings, including a
hearing on the ineffective assistance of counsel claim, the district court held
Appellant was foreclosed from raising claims one and two in a collateral
proceeding because they had already been adjudicated in the direct appeal. See
United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). The district court
held claim four was procedurally barred because Appellant failed to show cause
for failing to raise the issues in his direct appeal or actual prejudice from the
alleged errors. See United States v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002).
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As to Appellants ineffective assistance of counsel claim, he alleged three
specific instances of ineffective assistance of counsel: (1) counsel failed to
retrieve discovery and investigation reports from prior, disbarred counsel; (2)
counsel failed to have prior counsel held in contempt after he did not respond to a
subpoena for the discovery materials; and (3) counsel improperly advised
Appellant concerning the consequences of not accepting a plea bargain.
Appellant also alleged counsel failed to present his medical records to the district
court, which presumably would have prompted the court to conduct a competency
hearing before trial.
The district court allowed Appellant to reshape his claim at the hearing to
focus on two allegationsAppellant received bad advice regarding the plea
agreement, and counsel failed to consider Appellants mental health in her
communications with him and should have raised a competency issue before the
trial court. The district court ultimately held Appellant failed to show counsels
conduct fell below the objective standard of reasonableness required by
Strickland v. Washington, 466 U.S. 668 (1984). Specifically, counsel was aware
of and considered carefully the mental health, including the competency, of
[Appellant], counsel concluded reasonably that [Appellant] was competent,
and counsel provided [Appellant] with timely, relevant, complete, accurate, and
competent legal advice concerning the proposed plea agreement. (R. Vol. 2 at
252.) The district court concluded Appellant failed to establish either the
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deficient performance or prejudice prong of Strickland. (Id. at 253.)
To appeal the denial of his habeas petition, Appellant must obtain a
certificate of appealability. See 28 U.S.C. 2253(c)(1). Appellant argues
through appointed counsel that the Supreme Courts recent decision in Lafler v.
Cooper, 132 S. Ct. 1376 (2012), applies in this case because it clarifies, contrary
to some courts interpretation, that Lockhart v. Fretwell, 506 U.S. 364 (1993),
does not stand for the proposition that conviction at a fair trial cures counsel
incompetence in plea negotiations. However, not only did the district court not
use Fretwell to suggest counsels alleged incompetencies were cured by a fair
trial, but the district court specifically held Appellants counsel provided
competent advice at the plea negotiation stage. As Lafler notes, a defendant
must show the outcome of the plea process would have been different with
competent advice. 132 S. Ct. at 1384. We agree with the district court that
Appellant received competent advice, and we thus conclude Lafler does not assist
Appellants claims.
Appellant has also filed a pro se motion in which he raises several
arguments regarding his claim that counsel should have requested a competency
hearing. At the habeas hearing, counsel testified she was aware of Appellants
long history of mental illness, but that Appellant was very smart, was able to
communicate fairly well, despite being pretty emotional, and was clear and
under[stood] what was going on. (R. Vol. 3 at 17.) Counsel testified she
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therefore did not request a competency evaluation for Appellant. Counsel also
testified as to her nine-year experience as a state public defender in dealing with
competency issues. At the same hearing, Appellant testified trial counsel had
never [received] any of [Appellants] psychiatric records, period. She never
checked into my mental health at all. (Id. at 69.) In support of his pro se motion
to this court, Appellant submitted medical-release waivers he had signed on
November 30, 2004after the date of his trial. 1 Appellant argues these waivers
refute counsels testimony that she obtained waviers and began receiving some of
his medical health records during the first months of her representation.
We conclude that even if Appellant could satisfy Stricklands first prong by
showing counsels alleged failure to obtain Appellants medical records and move
for a competency determination fell below an objective standard of
reasonableness, 466 U.S. at 688, Appellant has not satisfied Stricklands second
prong. Appellant has not demonstrated he was prejudiced by counsels alleged
failures because he has not shown a reasonable probability he would have been
found incompetent to stand trial if counsel had requested and obtained a
competency hearing. See id. Although Appellant has a history of mental health
issues, [n]ot every manifestation of mental health illness demonstrates
incompetence to stand trial. United States ex rel. Foster v. DeRobertis, 741 F.2d
We have no indication these are the only waivers counsel obtained.
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1007, 1012 (7th Cir. 1984). There is no indication Appellant did not have a
rational understanding of the proceedings against him, and all of the evidence
indicates he was able to assist counsel and understand the charges against him.
After carefully reviewing Appellants brief, his pro se motion, and the
record on appeal, we conclude reasonable jurists would not debate whether the
district court erred in dismissing the petition. 2 See Slack v. McDaniel, 529 U.S.
473, 484 (2000). We therefore DENY the application for a certificate of
appealability and DISMISS the appeal. We DENY Appellants motion to appoint
new habeas counsel.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
Appellants only arguments in both his counseled brief and his pro se
motion concerned his ineffective assistance of counsel claim. He made no
arguments regarding the district courts dismissal of his other 2255 claims.
Regardless, we agree with the district courts dismissal of these claims and have
nothing to add to its thorough analysis. Reasonable jurists would not debate
whether the district court erred in dismissing these claims. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
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