Nos. 1:18-CV-00012-SWS and 1:15-CR-00042-SWS-1) (D. Wyo.)
LUCERO, HARTZ, and McHUGH, Circuit Judges.
ORDER DENYING A CERTFICATE OF APPEALABILITY
L HARTZ CIRCUIT JUDGE
Joel Elliott seeks a certificate of appealability (COA) to
appeal the dismissal by the United States District Court for
the District of Wyoming of his motion for relief under 28
U.S.C. § 2255. See 28 U.S.C. §
2253(c)(1)(B) (requiring a COA to appeal denial of a §
2255 motion). We deny a COA and dismiss the appeal.
4, 2014, an arsonist planted an incendiary device in the
Sheridan County Attorney's Office that set fire to the
building. Defendant Joel Elliott was suspected but not
charged with the arson. Months later, Defendant and the
public defender representing him on state charges of forgery,
stalking, and burglary met with the assistant United States
attorney (AUSA) and law-enforcement officers investigating
the arson. Defendant claimed that a fellow inmate, Joseph
Wilhelm, had confessed to Defendant and another inmate,
Robert Weber, that he had committed the arson. Defendant
provided a proffer to be evaluated by the federal government
for a possible leniency recommendation regarding his state
charges. But after an investigation of Mr. Wilhelm, it became
clear that Defendant was attempting to frame him. The AUSA
informed Defendant's public defender (1) that the
government would not provide a favorable recommendation on
Defendant's state charges, and (2) that the arson
investigation was active and would be treated as entirely
separate from Defendant's state charges.
January 2015 state investigators learned from counsel for
Weber that Defendant was making incriminating statements
about the arson and that Weber was willing to surreptitiously
record his conversations with Defendant. State investigators
met with Weber, placed a wire on him, cautioned him not to
speak with Defendant about his state charges or any
conversations Defendant had with his state counsel, and sent
Weber back to the jail pod he shared with Defendant. On
January 14 and 15, Weber recorded conversations in which
Defendant disclosed incriminating information about the fire.
Two months later, Defendant was charged in federal court with
five offenses related to the arson.
filed a pretrial motion to suppress the statements he made to
Weber on the ground that his Fifth Amendment right to counsel
had been violated. Relying on United States v. Cook,
599 F.3d 1208 (10th Cir. 2010), the district court denied
Defendant's motion, and he was ultimately convicted. He
unsuccessfully appealed his conviction, claiming, among other
things, that the government committed ethical violations
under the Wyoming Rules of Professional Conduct in arranging
for the recorded conversations. See United States v.
Elliott, 684 Fed.Appx. 685 (10th Cir. 2017). In
contesting the appeal, the government submitted an email
exchange between the AUSA assigned to Defendant's case
and an advisor in the Department of Justice's
Professional Responsibility Advisory Office (PRAO) concerning
compliance with the Wyoming Rules.
January 17, 2018, Defendant filed a § 2255 motion
claiming that (1) his counsel was constitutionally
ineffective in failing to contest the recorded conversations
on Sixth Amendment grounds, and (2) the government violated
Brady v. Maryland, 373 U.S. 83 (1963), by
withholding the email exchange between the AUSA and the PRAO.
The district court denied the § 2255 motion on both
grounds and declined to grant a COA.
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This requires "a demonstration
that . . . includes showing 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) (internal quotation marks omitted). Otherwise
stated, the applicant must show that the district court's
resolution of the constitutional claim was either
"debatable or wrong." 529 U.S. at 484.
reasonable jurist could debate the district court's
denial of Defendant's § 2255 motion. To prevail on
an ineffective-assistance claim, Defendant must demonstrate
both that his counsel's performance was deficient and
that "the deficient performance prejudiced [his]
defense." Strickland v. Washington, 466 U.S.
668, 687 (1984). Defendant was not prejudiced by
counsel's failure to raise a Sixth Amendment claim. The
Sixth Amendment right to counsel attaches "only to
charged offenses" and to those uncharged offenses that
"would be considered the same [as the charged offense]
under the Blockburger v. United States, 284 U.S. 299
(1932) test." United States v. Mullins, 613
F.3d 1273, 1286 (10th Cir. 2010) (brackets and internal
quotation marks omitted). At the time Weber recorded the
incriminating conversations, Defendant had not been charged
with arson or any related offense. His Sixth Amendment rights
therefore had not yet attached.
also contests the district court's denial of his
Brady claim. The government violates Brady
if it suppresses "evidence favorable to an accused"
that is "material either to guilt or to
punishment." Smith v. Sec'y of N.M. Dep't of
Corr., 50 F.3d 801, 822 (l0th Cir. 1995) (internal
quotation marks omitted). Evidence is material "only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). Defendant cannot make the necessary
materiality showing here, as the email exchange has no
bearing on the merit of the arson charges against him. Nor do
the email communications suggest any violation of
Defendant's constitutional rights that could have
resulted in suppression of evidence against him. There is
thus no reasonable probability that disclosure of the email
communications would have altered the result of
Defendant also raises Fifth and Sixth Amendment claims
regarding his recorded conversations that were not presented
to the district court, but we can easily dispose of them on
the merits. As discussed above, Defendant's Sixth
Amendment rights had not attached at the time he spoke to
Weber and thus were not violated. See Mullins, 613
F.3d at 1286. Nor were Defendant's Fifth Amendment rights
violated, as Miranda v. Arizona, 384 U.S. 436
(1966), and its progeny apply "only in the context of
custodial interrogation." Cook, 599 F.3d at
1214. Where, as here, the defendant is unaware that he is
speaking with ...