Green v. BrennanGreen v. Brennan
To obtain a COA, Mr. Sanchez must show ‐that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.‑ Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To establish ineffective assistance of counsel, Mr. Sanchez was required to prove deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Having reviewed Mr. Sanchez’s claims on appeal in light of the district court’s resolution, we are satisfied that he cannot meet this standard. Mr. Sanchez raised the consent issue pretrial and the district court found that his consent was voluntary. United States v. Sanchez, No. 11-cr-40085-JAR, 2011 WL 6091744, at *7 (D. Kan. Dec. 7, 2011). Thus, there is no deficient performance; the additional facts he now highlights certainly do not suggest a reasonable probability that the suppression motion would have been granted. As to ineffective assistance concerning the criminal history score, Mr. Sanchez has failed to show that, but for any of the alleged errors of counsel, there is a reasonable probability that the result of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052. Thus, the district court’s resolution is not reasonably debatable.
Accordingly, we DENY a COA, DENY IFP status, and DISMISS the appeal.
Paul Farley, May E. Kim, Office of the United States Attorney, District of Colorado, Denver, CO, for Defendant-Appellee.
ORDER AND JUDGMENT*
Harris L Hartz, Circuit Judge
This matter is before us on remand from the Supreme Court. Appellant Marvin Green was a postmaster with the U.S. Postal Service. He sued the Postmaster General under Title VII of the Civil Rights Act of 1964,
In Green v. Brennan, — U.S. —, 136 S.Ct. 1769, 1782, 195 L.Ed.2d 44 (2016), the Supreme Court reversed our judgment solely with respect to the constructive-discharge claim, holding that “a constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation.” The Court left open the question of when Mr. Green gave notice of his resignation, noting:
The Government argues that Green resigned on December 16, 2009—when he signed the settlement agreement—and that his claim is therefore still time barred. Green argues that he did not resign until February 9, 2010—when he submitted his retirement paperwork—and that his claim is therefore timely.
We agree with Mr. Green. The settlement agreement did not constitute a definitive notice of resignation because it provided that Mr. Green could still choose to continue his employment with the Postal Service by reporting for duty in Wyoming. He did not give such notice until submitting retirement paperwork on February 9, 2010. We therefore vacate that portion of our prior opinion holding the constructive-discharge claim untimely, and reinstate the remainder of the opinion.
We AFFIRM the district court’s dismissal of the claims based on the investigative-interview letter, the investigative interview itself, and the threat of criminal charges. We REVERSE summary judgment for the Postmaster General on the constructive-discharge and emergency-placement claims, and we REMAND for proceedings consistent with our prior decision as modified by the Supreme Court.