                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 7, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-3141
                                                (D.C. Nos. 2:10-CR-20009-CM-1 &
MARLO TOOMBS,                                          2:14-CV-02380-CM)
                                                             (D. Kan.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Marlo Toombs, a federal prisoner proceeding pro se, filed a motion for relief

under 28 U.S.C. § 2255, which the district court denied. The district court

subsequently dismissed in part and denied in part Toombs’s motion to alter or amend

the judgment pursuant to Fed. R. Civ. P. 59(e) and dismissed his motion for

reconsideration. Toombs has appealed from the district court’s decisions on these

motions and has filed a combined appellate brief/application for a certificate of

appealability (COA). For the reasons that follow, we deny a COA on all issues, with

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the exception of two procedural rulings related to the denial of the § 2255 motion.

We grant a COA as to those two rulings. Upon full consideration of Toombs’s

appellate brief, however, we affirm the district court’s denial of Toombs’s § 2255

motion.1 See, e.g., Weldon v. Pacheco, --- F. App’x ---, No. 17-8030, 2017 WL

5125555, at *1 (10th Cir. Nov. 6, 2017) (granting COA and affirming “[u]pon full

consideration of [petitioner’s] appellate brief); Williams v. Warrior, 631 F. App’x

587, 589 (10th Cir. 2015) (same).

                                           I.

      In April 2006, Toombs and a co-defendant, Arlynda Osborn, were indicted for

various firearms and drug offenses. Toombs was initially represented by the Federal

Public Defender’s Office, but then, in June 2006, he retained Daniel Ross and

Ray Sousley to represent him. In August 2007, Toombs fired Ross and Sousley and

hired Melanie Morgan to represent him. Toombs’s trial began in March 2008.

      From the time Toombs was arraigned in May 2006 until his trial in March

2008, the district court granted nine continuances. Prior to trial, Toombs filed two

motions related to the delay in starting his trial. He first moved to dismiss the

indictment, alleging a violation of his Sixth Amendment right to a speedy trial. In his

second motion, he alleged that the district court violated the Speedy Trial Act by

failing to make sufficient factual findings to support its seven ends-of-justice

continuances. The district court denied both motions and the case proceeded to trial.

      1
        Because we conclude that the arguments advanced by Toombs ultimately do
not warrant appellate relief, we have not ordered the government to file a response
brief.
                                           2
The jury found Toombs guilty on all counts and the district court sentenced him to

thirty-five years’ imprisonment.

      Toombs appealed. We affirmed the district court’s denial of the motion to

dismiss on Sixth Amendment speedy trial grounds concluding in part that

Mr. Toombs could not avail himself of a presumption of prejudice, and could not

make a particularized showing of prejudice, that he was not able to defend due to the

lack of a specific witness or evidence. United States v. Toombs, 574 F.3d 1262, 1275

(10th Cir. 2009) (Toombs I). However, we reversed the district court’s denial of the

motion to dismiss for violations of the Speedy Trial Act. Id. at 1276. We remanded

for the district court to consider whether to dismiss the indictment with or without

prejudice. Id.

      On remand, the district court determined that the indictment should be

dismissed without prejudice. Toombs was re-indicted and his case proceeded to a

second trial. The jury found Toombs guilty on six of the seven counts with which he

was charged. The district court sentenced Toombs to thirty years in prison.

      Toombs appealed. He argued that the district court erred in admitting his

testimony from the first trial and dismissing the indictment without prejudice on

remand after his first appeal. We concluded that the district court erred by not

evaluating Toombs’s prior trial testimony under the Federal Rules of Evidence before

admitting it into evidence. United States v. Toombs, 713 F.3d 1273, 1279 (10th Cir.

2013) (Toombs II). But we further concluded that reversal of Toombs’s convictions

was not warranted because any error in admitting his prior testimony was harmless

                                           3
given that “the record contained[ed] ample additional evidence of [his] guilt” and the

court gave adequate limiting instructions. Id.

       Toombs subsequently filed a § 2255 motion in which he raised six claims for

relief. The district court denied the motion, resolving four claims on procedural

grounds and two on the merits.

       In his first and sixth claims for relief, Toombs alleged that Ross and Sousley

were constitutionally ineffective in representing him during the pre-trial phase of his

first trial before he retained Morgan to represent him. The district court concluded

that those claims “[were] not properly before the court.” R., Vol. 4 at 173. The

district court stated that the claims against Ross and Sousley were “foreclosed”

because the relief Toombs sought had already been realized through his direct appeal

when his first indictment was dismissed. The court therefore stated that “[it would]

not address Toombs’s claims against Ross and Sousley.” Id.

       In his second and fourth claims for relief, Toombs asserted that Morgan was

constitutionally ineffective in litigating the speedy trial issues that resulted in the

district court dismissing the first indictment without prejudice. He also asserted that

Morgan was constitutionally ineffective for not asking for a mistrial (1) after a

reference was made to his prior trial in violation of the court’s instruction and

(2) after the government made a prejudicial reference in its opening statement to a

letter he had written. In considering these claims, the district court stated: “[t]hese

arguments . . . were raised and disposed of on direct appeal” and “[c]laims raised and

disposed of on direct appeal cannot be reasserted in a § 2255 motion.” Id. at 174.

                                             4
      The court then addressed the merits of Toombs’s third and fifth claims for

relief. In his third claim for relief, Toombs argued that Morgan was constitutionally

ineffective for various reasons at all stages of his proceedings—trial, sentencing, and

appeal. In his fifth claim for relief, he asserted that Morgan was constitutionally

ineffective for failing to properly challenge the government’s conduct at trial. The

court considered the standards for assessing counsel’s performance under Strickland

v. Washington, 466 U.S. 668 (1984), and concluded that Toombs had failed to

overcome the presumption that his trial counsel’s performance was objectively

reasonable. The court also noted in a footnote that “[e]ven if Toombs could

somehow show that Morgan was ineffective, it is unlikely those errors prejudiced

him,” referencing our statement in Toombs II, that “[t]he record contains ample

additional evidence of Toombs’ guilt,” and concluding that “[i]t is unlikely that, but

for the errors Toombs asserts, the result of the proceeding would have been

different.” R., Vol. 4 at 174 n.2 (internal quotation marks omitted).

      After the district court denied the § 2255 motion, Toombs filed his Rule 59

motion to alter or amend the judgment. The district court determined that his first

argument—that the court failed to address Toombs’s claims for ineffective assistance

of counsel against Ross and Sousley—should be construed as an unauthorized second

or successive § 2255 claim and dismissed for lack of jurisdiction. The court

determined that the other arguments, which alleged that: (1) the court improperly

accepted the government’s misinterpretation of Toombs’s claims, (2) did not allow

Toombs to file supplementary/clarifying materials to support his § 2255 motion, and

                                           5
(3) denied Toombs’s request for an extension to file a reply brief, did not provide a

basis for relief under either Rule 59 or Rule 60 of the Federal Rules of Civil

Procedure and denied them. Toombs next filed a motion for reconsideration, which

the district court treated as an unauthorized second or successive § 2255 motion and

dismissed it for lack of jurisdiction.

                                            II.

         We first address Toombs’s request for a COA on the two procedural rulings

from the denial of his § 2255 motion. When a procedural ruling is involved, “a COA

should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In

applying Slack, we “only take a quick look at the federal habeas petition to determine

whether [the petitioner] has facially alleged the denial of a constitutional right.”

Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000) (internal quotation marks and

brackets omitted); see also e.g., Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir.

2000).

         A. Claims for ineffective assistance of counsel (Ross and Sousley)

         The district court explained that Toombs’s claims of ineffective assistance of

counsel related to Ross and Sousley were “not properly before the court” and

therefore it would “not address Toombs’s claims against Ross and Sousley.”

R., Vol. 4 at 173. The district court stated that the claims against Ross and Sousley

                                             6
were foreclosed because the relief Toombs sought had already been realized through

his direct appeal when his first indictment was dismissed.

      Toombs argues that the district court erred in refusing to address his claims

that Ross and Sousley were constitutionally ineffective and in categorizing those

claims as foreclosed. He asserts that a second indictment does not foreclose errors of

a constitutional magnitude and the two trials are considered the same proceeding.

      We conclude that the district court’s procedural ruling on these claims is

reasonably debatable. Toombs’s first indictment was dismissed without prejudice.

He was then re-indicted, re-tried, re-convicted and re-sentenced. We have explained

that for the purpose of evaluating whether a defendant was prejudiced by an

attorney’s deficient performance, that prejudice is determined by looking at the

outcome of the full criminal proceeding, not the outcome of a particular indictment.

See United States v. Rushin, 642 F.3d 1299, 1309-10 (10th Cir. 2011). Under such an

approach, the issue becomes “whether there is a reasonable probability that the

ultimate result of the criminal proceedings against [a defendant] would have been

different.” Id. at 1312 (Holmes, J., concurring).

      Rushin arguably supports the proposition that the dismissal of Toombs’s first

indictment without prejudice would not foreclose his claims against Ross and

Sousley because it was not the outcome or result of his full criminal proceeding.

Because reasonable jurists could debate the correctness of the district court’s

procedural ruling and Toombs has facially alleged the violation of a constitutional

right, we grant a COA on this ground.

                                           7
       Assuming without deciding that the district court’s procedural ruling was

incorrect, we conclude that remand would be futile because we can affirm the district

court’s decision on alternate grounds. To establish ineffective assistance of counsel,

a defendant must show his counsel’s performance was constitutionally deficient and

that counsel’s deficient performance was prejudicial. Strickland, 466 U.S. at 687.

We “may address the performance and prejudice components in any order, [and] need

not address both if [petitioner] fails to make a sufficient showing of one.” Boltz v.

Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005) (internal quotation marks omitted)

(second alteration in original).

       Toombs asserts on appeal that Ross and Sousley abandoned him and that “[h]e

had, what amounted to, no representation for an entire year.” Aplt. Op. Br./COA

App. at 14. He further asserts that Ross and Sousley’s deficient performance during

the “critical pre-trial stages . . . tainted the disposition of the subsequent

proceedings,” id. at 13, and “the second indictment did not neutralize the taint,” id. at

14. Although he provides legal authority to support general propositions regarding

ineffective assistance of counsel during the pre-trial stage, he does not tie that legal

authority to record evidence in his case, nor does he offer any explanation as to how

Ross and Sousley’s allegedly deficient performance during a portion of the pre-trial

period prior to his first trial affected the outcome of his entire criminal proceeding.

See id. at 13-15. He ends his argument on these claims with the vague statement that

“[i]n many instances of the case sub judice, an earlier error became a catalyst for

later errors that may have appeared unrelated.” Id. at 15. But what those errors

                                             8
might be and how they may have affected the outcome of his criminal proceeding,

Toombs fails to explain. That failure proves fatal to his claim that Ross and Sousley

provided ineffective assistance of counsel.

       We decline to address the performance prong of the Strickland test because

Toombs’s claim fails on the prejudice prong. He has failed to “demonstrate a

reasonable probability that, but for counsel’s unprofessional errors, the result of [his

criminal] proceeding would have been different.” Rushin, 642 F.3d at 1309 (internal

quotation marks omitted). Accordingly, we affirm the district court’s denial of

Toombs’s claims that Ross and Sousley provided ineffective assistance of counsel.

       B. Claims for ineffective assistance of counsel (Morgan)

       The district court ruled that two of Toombs’s claims for ineffective assistance

of counsel relating to Morgan’s representation were barred because Toombs had

raised them on appeal. The district court stated:

       Toombs asserts Morgan provided ineffective assistance for failing to
       succeed on a claim that his speedy trial rights were violated and for
       failing to move for a mistrial when the court ruled his prior (first) trial
       testimony was admissible. These arguments, however, were raised and
       disposed of on direct appeal. Claims raised and disposed of on direct
       appeal cannot be reasserted in a § 2255 motion.

R., Vol. 4 at 173-74 (citation omitted).

       In his request for COA, Toombs argues that the court erred in denying these

ineffective-assistance claims because “it incorrectly categorized them as arguments

‘raised and disposed of on direct appeal’ (Doc. 119).” Aplt. Op. Br./COA App. at 15.

He asserts that he “did not raise a mistrial issue on direct appeal.” Id. And he


                                            9
further asserts that the court erroneously classified his claims regarding the speedy

trial violation because “what [he] raised in his § 2255 motion were ineffective

assistance of counsel claims in regards to his speedy trial violation.” Id. at 17.

      We earlier set out the claims raised in Toombs’s direct appeals and they do not

encompass ineffective assistance of counsel claims, which is not surprising given that

most of these claims should be considered in collateral proceedings under 28 U.S.C.

§ 2255. United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995).

      Because Toombs has raised a facially valid claim for the denial of his Sixth

Amendment right to effective counsel, and the district court erred in its procedural

ruling that Toombs’s claims were barred because he had raised them on direct appeal,

we grant a COA. We conclude, however, that remand would be futile because we

can affirm the district court’s decision on alternate grounds.

             1. Mistrial claims

      Toombs asserts that the district court referenced the wrong mistrial motion and

failed to note that he raised two mistrial claims. Toombs acknowledges that Morgan

did move for a mistrial when the district court decided to admit his prior trial

testimony. But he contends that he asserted two different mistrial claims in his

§ 2255 motion.

      He first argues that Morgan was ineffective for failing to move for a mistrial

when, during the reading of his prior trial testimony, the reader (Officer Vogel)

“made reference to the prior trial in the presence of the jury.” Aplt. Op. Br./COA

App. at 15. Toombs asserts that “[t]he court had predetermined that any mention of

                                           10
a prior trial is prejudicial and took great care to excise all references of a prior trial

even if it chops the language.” Id.

       Although the district court did request that the government “assure the court

that [there are] no references to the first trial in the reading of the transcript [from the

prior trial],” R., Vol. 2 at 768, the court did not make any express determination as to

the prejudicial impact of any such references. Before reading the transcript to the

jury, the government indicated its belief that it had excised all references to the prior

trial, but it later noted for the record “that even though we excised certain portions of

the transcript, apparently, there was an error by our reader, Officer Vogel, and he did

refer to the fact that there was a . . . previous trial.” Id. at 1166. Toombs does not

explain how the fact that the jury heard an isolated reference to a prior trial is

sufficiently prejudicial to outweigh the other evidence of guilt. See Toombs II, 713

F.3d at 1279 (holding that any error in admitting Toombs’s prior trial testimony was

harmless because “[t]he record contains ample additional evidence of guilt”).

Toombs has not demonstrated a reasonable probability that, but for Morgan’s failure

to move for a mistrial after the admission of this stray reference to his prior trial, the

outcome of his criminal proceeding would have been different.

       Toombs’s second mistrial claim relates to a reference the government made in

its opening statement to a letter that Toombs wrote to Osborn. Toombs asserted in

his § 2255 motion that from the government’s reference to the letter in its opening

statement, “[t]he Jury could infer that they were going to see evidence of an

admission of guilt and cowardice on my part.” R., Vol. 4 at 79-80. Although

                                             11
Toombs conceded that “[t]he Prosecutor failed to present evidence to support either

claim,” he also made the conclusory assertion that “[t]hese statements . . . had a

profound effect on the trial because of how the Government presented [it’s] case.”

Id. at 80. He argues that the prejudicial remarks in the government’s opening

statement were in bad faith and were grounds for a mistrial, but he acknowledges that

Morgan “successfully challenged the admission of the letter because it was

prejudicial,” Aplt. Op. Br./COA App. at 17, and the court gave a limiting instruction

to the jury that the opening statements were not evidence. Toombs has therefore

failed to demonstrate a reasonable probability that any alleged error in Morgan

failing to move for a mistrial under these circumstances would have changed the

outcome of his criminal proceeding.

                2. Speedy trial claim

      Toombs asserts that Morgan failed to do enough to challenge the speedy trial

issues from his first trial and that he was prejudiced by her failings. After this court

decided Toombs I and remanded to the district court, Morgan filed a motion arguing

that the indictment should be dismissed with prejudice. The district court disagreed

and dismissed the indictment without prejudice. Toombs was re-indicted and

re-convicted.

      Morgan then argued on appeal that the district court abused its discretion in

dismissing the indictment without prejudice. But we concluded in Toombs II that the

district court had not abused its discretion in dismissing the indictment without

prejudice. 713 F.3d at 1281. Although Toombs makes conclusory allegations that

                                           12
Morgan failed to present evidence of the government’s dilatory conduct, he has not

presented any facts that would support his assertions. He has failed to demonstrate a

reasonable probability that any of Morgan’s alleged errors related to the motion to

dismiss would have changed the district court’s decision to dismiss the indictment

without prejudice—a decision that this court affirmed on appeal in Toombs II.

                                           III.

      We next turn to Toombs’s remaining requests for COA related to his § 2255

motion, his Rule 59 motion, and his motion for reconsideration. We will grant a

COA only if Toombs makes “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To meet this standard when seeking review of a

merits ruling, “[t]he petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

Slack, 529 U.S. at 484.

      Toombs raised two other claims in his § 2255 motion regarding Morgan’s

alleged ineffective assistance of counsel. Toombs first asserted that Morgan was

ineffective for various reasons at his trial, sentencing, and on appeal. In a separate

claim, he asserted that she failed to properly challenge the government’s misconduct

during trial. The district court denied these claims after concluding that Toombs had

failed to overcome the presumption that his trial counsel’s performance was

objectively reasonable. The court further noted that even if counsel’s performance

had been deficient in some way, Toombs could not demonstrate that the errors



                                           13
prejudiced him. Toombs has failed to show that the district court’s resolution of

these claims is reasonably debatable. We therefore deny his request for a COA.

      Toombs also requests a COA with respect to three rulings related to the denial

of his Rule 59 motion and the ruling denying his motion for reconsideration. Two of

the COA requests relate to the district court’s merits rulings denying Toombs’s

request for Rule 59 relief in which he argued: (1) the court did not fully understand

his § 2255 claims because it relied on and adopted the government’s

misinterpretation of his claims; (2) he should have been allowed to file

supplemental/clarifying materials; and (3) the court erred in denying his request to

file a reply. The court concluded that these arguments did not establish a basis to

alter or amend the judgment under Rule 59 or Rule 60. Reasonable jurists could not

debate the district court’s resolution of these arguments.

      In his Rule 59 motion and motion for reconsideration, Toombs also argued that

the district court erred in failing to address the merits of his claims that Ross and

Sousley provided ineffective assistance of counsel. The district court dismissed those

arguments as asserting unauthorized second or successive § 2255 claims. We deny as

moot Toombs’s request for a COA as to those procedural rulings. The relief Toombs

sought was to have the district court rule on the merits of his claims for ineffective

assistance of counsel as to Ross and Sousley. We have addressed the merits of those

claims in this appeal and we have affirmed the district court’s denial of § 2255 relief.

Accordingly, even if a COA were warranted as to those procedural rulings, there is

no relief we could grant Toombs on appeal.

                                           14
                                          IV.

      For the foregoing reasons, we grant a COA on the two procedural rulings in

the district court’s denial of Toombs’s § 2255 motion and affirm the district court’s

judgment denying relief. We deny a COA as to the remaining issues. We also deny

Toombs’s motion for leave to file a supplemental brief.

                                          Entered for the Court



                                           Paul J. Kelly, Jr.
                                           Circuit Judge




                                          15
