683 F. App'x 667

10th Cir.

2017

OLSEN v. MAPES

No. 02-2253

United States Court of Appeals, Tenth Circuit

June 25, 2003

333 F.3d 1199

action for failure to prosecute or to comply with a court order. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003). In dismissing McCoy‘s complaint and closing the case, the district court recounted how McCoy had drawn out the proceedings by filing multiple reconsideration motions which did little more than impugn the court‘s integrity. It further noted that McCoy had been given guidance and multiple extensions of time to properly serve the defendants and to allege plausible Title VII claims. Finally, the court observed that McCoy had been warned of the consequences of further delaying the case. Given this history, we agree with the district court that the time for showing McCoy leeway had expired and it was time to enforce the court‘s deadlines. Accordingly, we discern no abuse of discretion. Cf. Lee v. Max Int‘l, LLC, 638 F.3d 1318, 1323-24 (10th Cir. 2011) (finding no abuse of discretion in dismissal with prejudice where “the record show[ed] that a party failed to comply with a document request and two court orders compelling production of materials“).

IV. Denying Reconsideration

The district court denied McCoy‘s final motion to reconsider, explaining that its August 18 order, which set the amendment deadline at September 2, was mailed to the proper address. Moreover, the court observed, McCoy had no right to an extension beyond August 15, and he made no inquiries as to the status of his August 15 extension request until September 6. Finally, the court noted that McCoy had been given ample time—indeed, over 70 days—to amend his complaint. Under these circumstances, we conclude that the district court did not abuse its discretion in denying reconsideration. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (indicating that reconsideration motions are reviewed only for an abuse of discretion).

CONCLUSION

The judgment of the district court is affirmed.

UNITED STATES of America, Plaintiff-Appellee, v. Kizzy KALU, Defendant-Appellant.

No. 17-1006

United States Court of Appeals, Tenth Circuit.

Filed March 28, 2017

Robert M. Brown, Beth N. Gibson, James C. Murphy, Office of the United States Attorney, District of Colorado, Denver, CO, for Plaintiff-Appellee

Kizzy Kalu, Pro Se

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY^*

Carlos F. Lucero, Circuit Judge

Kizzy Kalu, a federal prisoner proceeding pro se, seeks a certificate of appealability (“COA“) to challenge the denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss the appeal.

I

Kalu was convicted by a jury on 89 counts of mail fraud, encouraging and inducing an alien, visa fraud, forced labor, trafficking in forced labor, and money laundering. He was sentenced to 130 months’ imprisonment on some counts and 120 months on others, with the sentences running concurrently. We affirmed his conviction and sentence on direct appeal. United States v. Kalu, 791 F.3d 1194 (10th Cir. 2015).

Kalu subsequently filed a § 2255 motion in the district court asserting one claim for ineffective assistance of counsel during plea negotiations. He alleges that counsel failed to pursue a proposed plea bargain and pressured him to go to trial by falsely indicating that the district court would not accept the proposed sentence, he would likely be acquitted at trial, and he would receive a more favorable sentence even if convicted. Kalu attached to his motion an email sent from defense counsel, Peter Menges, after the jury‘s verdict but before sentencing. In the email, Menges recounted his recollection of pretrial plea negotiations with the government. He stated that the government had discussed the possibility of a 30-37 month sentence, but never extended a firm offer. The email indicates that negotiations did not progress because Kalu would only accept an offer close to credit for time served, which the government rejected. Menges further wrote that “[w]e never got past the negotiation stage because you were never interested in any offer even close to what the government was proposing.” Kalu also attached a portion of the sentencing hearing transcript, in which he stated that “after discussing [a possible plea agreement] with my attorneys, because there was nothing written about this, I decided I knew I felt that I should go to trial.”

Menges and co-counsel, Michael Sheehan, filed affidavits regarding the as-sertions in Kalu‘s § 2255 motion. Both affirmed that the government never extended a formal plea offer and that Kalu was not interested in negotiating a plea. Further, both attorneys averred that they never pressured Kalu to reject a plea or made the representations identified in Kalu‘s § 2255 motion. Menges also attached his notes from the meeting in which he discussed the possibility of a plea with Kalu.

After receiving counsels’ affidavits, the district court determined that an evidentiary hearing was not warranted. It denied relief on the merits and declined to grant a COA. Kalu now seeks a COA from this court.

II

A prisoner may not appeal the denial of relief under § 2255 without a COA. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard, Kalu must show “that 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

To succeed on an ineffective assistance claim, a prisoner must establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The right to counsel extends to the plea-bargaining process. Missouri v. Frye, 566 U.S. 134, 140 (2012). Kalu argues that counsel was ineffective for failing to pursue a formal offer after the government discussed the possibility of a 30-37 month sentence. However, a defendant has no right to be offered a formal plea. Id. at 148. And both defense attorneys affirmed that Kalu was uninterested in the 30-37 month proposal when it was presented to him. Counsel‘s averments are supported by the email from Menges to Kalu, and Kalu‘s statements at sentencing.

Kalu also argues that defense counsel made false statements as to Kalu‘s prospects of acquittal and likely sentence at trial to improperly encourage Kalu to reject the potential offer. This assertion is contravened by counsels’ affidavits. Further, Kalu‘s own statements at the sentencing hearing undermine his current argument; he unequivocally stated that he decided to proceed to trial and did not suggest he was pressured to do so by defense counsel. In any event, an erroneous prediction as to the likelihood of success does not necessarily constitute ineffective assistance. See Lafler v. Cooper, 566 U.S. 156, 174 (2012). Kalu‘s bare assertion that counsel‘s advice proved incorrect does not establish deficient performance.

Finally, Kalu challenges the district court‘s decision to deny his motion without an evidentiary hearing. We conclude the district court did not abuse its discretion because “the files and records of the case conclusively show” that Kalu is not entitled to relief. § 2255(b); see also United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002) (denial of evidentiary hearing reviewed for abuse of discretion); Hopkinson v. Shillinger, 866 F.2d 1185, 1211 (10th Cir. 1989) (“Conclusory allegations unsupported by specifics are insufficient to require a court to grant an evidentiary hearing, as are contentions that in the face of the record are wholly incredible.” (quotation and ellipses omitted)), overruled on other grounds as stated in Phillips v. Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).

III

For the foregoing reasons we DENY a COA and DISMISS the appeal. Kalu‘s motion to proceed in forma pauperis is GRANTED.

UNITED STATES of America, Plaintiff-Appellee, v. Trenton Hollis PORTER, Defendant-Appellant.

No. 16-1289

United States Court of Appeals, Tenth Circuit.

Filed March 30, 2017

Kurt Bohn, Karl L. Schock, Office of the United States Attorney, District of Colorado, Denver, CO, for Plaintiff-Appellee

Josh Lee, Office of the Federal Public Defender, Districts of Colorado and Wyoming, Denver, CO, for Defendant-Appellant

Before KELLY, MURPHY, and MATHESON, Circuit Judges.*

ORDER AND JUDGMENT**

Paul J. Kelly, Jr., Circuit Judge

Defendant-Appellant Trenton Porter appeals from the district court‘s resentencing pursuant to our remand in United States v. Porter, 643 Fed.Appx. 758 (10th Cir. Mar. 29, 2016) (unpublished). He challenges the application of a base offense level of 20 (instead of 14) pursuant to U.S.S.G. §§ 2K2.1(a)(4) and 4B1.2(a)(1). Our jurisdiction arises under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

Mr. Porter pled guilty to possessing a firearm as a previously-convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At resentencing, the district court, over Mr. Porter‘s objection, concluded that robbery under Colorado law (Colo. Rev. Stat. § 18-4-301(1)) was a crime of violence under § 4B1.2(a)(1). The court imposed a sentence accordingly.

We held in United States v. Harris, 844 F.3d 1260, 1270-71 (10th Cir. 2017) that robbery under § 18-4-301(1) is a violent felony under the elements clause of the Armed Career Criminal Act (ACCA). Relying on Harris, we applied the same reasoning to Colorado robbery in the context of § 4B1.2(a)(1), whose elements clause mirrors that of the ACCA. United States v.

Notes

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. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause 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.

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