                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 25, 2014
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 LEWIS RICHARDSON,

              Petitioner - Appellant,

 v.                                                      No. 14-1126
                                                (D.C. No. 1:12-CV-01828-REB)
 PAM PLOUGHE, Warden, and JOHN                           (D. of Colo.)
 SUTHERS, Attorney General of the
 State of Colorado,

              Respondents - Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      Lewis Richardson, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to challenge (1) the denial of his motion pursuant to Federal

Rule of Civil Procedure 59(e), requesting that the district court reconsider its

decision dismissing his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254, and (2) the district court’s denial of habeas relief in the first instance.

      *
         This order is not binding precedent except under the doctrines of law of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.
We have jurisdiction under 28 U.S.C. §§ 2253(a) and 1291, and we construe

Richardson’s filings liberally because he is proceeding pro se. See Hall v.

Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      Because the district court correctly disposed of Richardson’s petition, we

DENY the application for a COA and DISMISS this appeal. To the extent that

Richardson seeks authorization to file a second or successive habeas petition, we

DENY that request.

                                 I. Background

      In 2004, Richardson was found guilty of numerous offenses largely related

to his persistent harassment of a former friend. Of particular relevance to the

request for a COA was his conviction for stalking under subsections of Colorado

Revised Statute § 18-9-111 (2007) (the “Colorado Stalking Statute”) in effect at

the time of his prosecution. Those charges were based on Richardson’s pro se

filing of thirteen harassing lawsuits against the victim.

      After a direct appeal, a motion for sentence reconsideration, and efforts at

post-conviction relief in state court left Richardson’s judgment and sentence

undisturbed, Richardson timely initiated federal habeas proceedings in July 2012,

raising numerous grounds for relief. On the first pass, the district court dismissed

many of these claims as procedurally defaulted because Richardson had not

exhausted those claims by sufficiently presenting them in state court. The district

court also dismissed other claims that presented pure issues of state law. After

                                         -2-
further briefing on the remaining claims, the district court denied habeas relief

and declined to grant a COA. Richardson then filed a motion to alter or amend

the judgment under Rule 59, which the district court denied on the merits.

Richardson now appeals. 1

                                  II. Discussion

      We interpret Richardson’s filing as an appeal of two distinct district court

orders: (1) a February 4, 2014 order denying his request for a writ of habeas

corpus, and (2) a February 20, 2014 order denying his motion under Rule 59.

Properly construed, Richardson’s challenge to the former is an application for a

COA and his challenge to the latter is a successive request for habeas relief. We

address each in sequence.

             A. COA Application

      The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a

petitioner to obtain a COA before he can appeal the denial of any final order in a

habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(B). A COA requires the

applicant to make a “substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To meet this standard, Richardson must demonstrate that

“reasonable jurists could debate whether (or, for that matter, agree that) the


      1
         Applying the prison mailbox rule, as well as applicable tolling principles,
we find Richardson’s filing with this court constitutes a timely appeal of both the
underlying habeas judgment and the denial of his Rule 59 motion. Price v.
Philpot, 420 F.3d 1158, 1163–64 (10th Cir. 2005).

                                         -3-
petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Miller–El

v. Cockrell, 537 U.S. 322, 336 (2003) (quotation marks omitted).

      Where a state court has decided a petitioner’s claims on the merits, we are

required to integrate “AEDPA’s deferential treatment of state court decisions . . .

into our consideration” of the COA request. Dockins v. Hines, 374 F.3d 935, 938

(10th Cir. 2004). To this end, Richardson must show that the state court’s

adjudication of a given claim “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding.” Phillips v. Workman, 604

F.3d 1202, 1209 (10th Cir. 2010) (referring to standard under 28 U.S.C.

§ 2254(d)(1), (2)).

      Based on our review of the district court’s decision, the record on appeal,

and Richardson’s brief, we detect three arguments as to why we should grant a

COA and we address those arguments below. In making these arguments on

appeal, Richardson presents both contentions initially raised in the district court

and newly formulated theories. Since we will not consider arguments raised for

the first time on appeal, United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.




                                         -4-
2002), we have parsed his briefing and do not attend to arguments not first

addressed to the district court. 2

              1. Overbreadth

       Richardson first contends that the Colorado Stalking Statute, Colo. Rev.

Stat. § 18-9-111(4) et seq. (2007), is unconstitutionally overbroad as applied to

him. 3 Described broadly, he argues that filing a legal complaint with the

government, regardless of the filer’s vexatiousness, is protected under the First

Amendment’s right to petition. See Aplt. Br. at 8. This First Amendment

protection, Richardson tells us, is embedded in firmly established Supreme Court

precedent such that the Colorado Stalking Statute, and the state court’s

interpretation of it, is unconstitutional. The Colorado Court of Appeals

considered and rejected this claim on direct appeal. People v. Richardson, 181

P.3d 340, 345 (Colo. App. 2007).

       Much of Richardson’s argument hinges on his distinction between the terms

“vexatious” and “baseless” (or “frivolous”) that he borrows from the Supreme

Court’s antitrust jurisprudence. According to Richardson, vexatious lawsuits


       2
         To be clear, we still construe Richardson’s appeal liberally, but we
decline to excuse him from obeying the “rules of procedure that govern other
litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005).
       3
         In front of the district court, Richardson argued that the statute was also
overbroad and vague on its face, but he has abandoned those arguments by not
raising them in his application for a COA. See United States v. Springfield, 337
F.3d 1175, 1178 (10th Cir. 2003).

                                         -5-
always retain their First Amendment protection while baseless or frivolous

lawsuits do not. He concludes that because the thirteen lawsuits that he filed have

only been labeled “vexatious,” they are protected petitions, rendering the statute

unconstitutionally overbroad under the circumstances—even when Richardson has

conceded his bad faith in filing. Richardson’s illustrative case is Professional

Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49,

60–61 (1993), where the Supreme Court found that a plaintiff’s subjective bad

faith in litigating does not erase First Amendment protections for filing an

antitrust lawsuit so long as the lawsuit amounts to an objectively reasonable effort

to litigate. Id. In that case, the Court held that “sham” litigation must, in the first

instance, be objectively unreasonable in order to slide outside of the Petition

Clause’s reach. Id. at 60. Unfortunately for Richardson, an earlier Supreme

Court decision, Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743–44

(1983)—which has not be overturned—appeared to define the scope of “sham”

litigation more broadly to include lawsuits filed merely for harassment purposes.

Id. at 741, 743.

      In view of our task on appeal, we turn down the opportunity to establish the

precise circumstances under which a “sham” lawsuit falls outside the scope of the

Petition Clause. Stated basically, there is no clearly established federal law that

preserves First Amendment protection for a vexatious litigant’s repeated

unreasonable complaints. In fairness, and as we have just described, we read the


                                          -6-
Supreme Court authority as somewhat unsettled as to the circumstances under

which a lawsuit that is undisputably vexatious but only arguably baseless is

deserving of First Amendment protection. See generally BE & K Constr. Co. v.

NLRB, 536 U.S. 516, 523–36 (2002) (describing the relationship between Bill

Johnson’s and Professional Real Estate Investors). But the element of doubt is

enough to shield the state court’s decision due to the deference owed under

AEDPA—that is, reasonable jurists could not fairly debate the reasonableness of

the Colorado Court of Appeals’ decision to reject Richardson’s constitutional

challenges to the Colorado Stalking Statute. See Dockins, 374 F.3d at 940.

             2. Ineffective Assistance of Counsel

      In his second claim for relief, Richardson asserts that his state-court

appellate counsel provided ineffective assistance by failing to request certiorari

review in the Colorado Supreme Court on the issue of whether vexatiousness must

be found by a trier of fact in order to establish a violation of the Colorado

Stalking Statute. The Colorado Court of Appeals previously rejected this claim

during Richardson’s post-conviction proceedings in state court. See App. at

49–50.

      A prisoner cannot generally bring ineffective-assistance-of-counsel claims

alleging a failure to pursue an issue in a petition for certiorari. United States v.

Zamora-Solorzano, 387 F. App’x 848, 850 n.1 (10th Cir. 2010). This tracks the

Supreme Court’s long-held rule that there is no right to counsel during


                                          -7-
discretionary appeals. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see

also Colo. App. R. 49 (indicating that granting certiorari is discretionary). This

alone is enough to dispose of Richardson’s request for a COA on his ineffective-

assistance-of-counsel claims.

      The Colorado Supreme Court, however, appears to have recognized a right

to counsel in seeking certiorari through the Colorado state courts. See People v.

Valdez, 789 P.2d 406, 408 (Colo. 1990) (en banc). In this case, both the Colorado

Court of Appeals and the district court assumed that Richardson was entitled to

such a constitutional right. We disagree with this interpretation of the scope of

the right to counsel under the circumstances, but even assuming for the sake of

argument that Richardson had a right to counsel for a certiorari petition to the

Colorado Supreme Court, we reject his ineffective-assistance claim.

      The scope of our review of ineffective-assistance-of-counsel claims during

§ 2254 cases is “doubly deferential.” See Knowles v. Mirzayance, 556 U.S. 111,

123 (2009). Not only do we “defer to the state court’s determination that

counsel’s performance was not deficient,” but we also “defer to the attorney’s

decision in how to best represent a client.” Byrd v. Workman, 645 F.3d 1159,

1168 (10th Cir. 2011) (quoting Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th

Cir. 2009)). We thus frame that question as “whether there is any reasonable

argument that counsel satisfied [the] deferential standard” under Strickland v.




                                         -8-
Washington, 466 U.S. 668 (1984). See Harrington v. Richter, 131 S. Ct. 770, 788

(2011). If there is, the claim must fail.

      Strickland governs ineffective-assistance-of-counsel claims and requires a

showing (1) “that counsel’s representation fell below an objective standard of

reasonableness,” Strickland, 466 U.S. at 688, and (2) “that the deficient

performance prejudiced the defense,” id. at 687. See also United States v. Cook,

45 F.3d 388, 392 (10th Cir. 1995) (applying Strickland to assess effectiveness of

appellate counsel).

      We agree with both the state court and the district court that Richardson has

not shown that his direct-appeal counsel was unconstitutionally ineffective. To

demonstrate ineffectiveness in the failure to raise an issue during the appellate

process, Richardson must show that the issue was meritorious. Hawkins v.

Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999). When it is meritless, “then

counsel’s failure to raise it does not amount to constitutionally ineffective

assistance.” Id. Richardson admits difficulty in articulating exactly what

argument concerning “vexatiousness” would have convinced the state high court

that a different result was warranted. And based on our review of the materials

related to this COA application, we do not think such an argument exists. 4

      4
        The district court helpfully framed Richardson’s argument as a simple
question of whether the state court found vexatiousness sufficient to convict him
under the stalking statute. While we have some trouble recognizing this argument
in Richardson’s filings, we agree with the district court’s analysis as to why it
                                                                        (continued...)

                                            -9-
      Accordingly, we cannot conclude that counsel’s performance was obviously

deficient or prejudicial in failing to seek Colorado Supreme Court review on the

basis of this enigmatic argument or that the state court unreasonably applied

Strickland in reaching the same conclusion. We deny a COA on this issue.

             3. Subject Matter Jurisdiction

      In his final argument, Richardson asserts that his indictment was

constitutionally insufficient to provide adequate notice of the charges against him,

thereby violating his constitutional rights. In particular, he contends that the

indictment did not contain the specific facts necessary to show how he committed

the offense of stalking. We interpret this as an argument that a variance between

the crimes charged and the evidence presented rendered Richardson unable to

prepare a proper defense in contravention of the Sixth Amendment. See United

States v. Carnagie, 533 F.3d 1231, 1241 (10th Cir. 2008).

      Federal courts, especially on collateral review, generally do not consider

arguments about the deficiency of state charging procedures unless those

deficiencies elevate to constitutional proportions. Cf. Johnson v. Gibson, 169

F.3d 1239, 1252 (10th Cir. 1999). That is not the case here. First, there is no

dispute that, as the Colorado Court of Appeals described, the language from the



      4
       (...continued)
lacks merit. For the reasons expressed by the district court, this line of reasoning
cannot sustain Richardson’s ineffective-assistance claim in this § 2254
proceeding.

                                         -10-
charging indictment competently restated the Colorado Stalking Statute. App. at

46–48. In addition, any “simple variance” between the facts in the indictment and

those presented at trial did not prejudice Richardson’s defense because he was put

on notice of the stalking-related facts at the very latest during a preliminary

hearing almost a year before his trial. Hunter v. New Mexico, 916 F.2d 595, 598

(10th Cir. 1990) (finding that “simple variances” are generally not cognizable on

habeas review absent prejudice). At bottom, “[w]e are satisfied that [Richardson]

was fairly apprised of the nature of the charge and of the facts alleged by the

State to constitute the offense” so that his fundamental rights were not violated.

Johnson v. Turner, 429 F.2d 1152, 1155 (10th Cir. 1970); see also Taylor v.

Jones, 291 F. App’x 902, 906 (10th Cir. 2008). There can be no debate that the

district court correctly rejected the petition on these grounds.

       B. Rule 59(e) Motion

      Second or successive habeas petitions often masquerade as post-judgment

motions for relief. See Spitznas v. Boone, 464 F.3d 1213, 1214–19 (10th Cir.

2006). Thus, when a Rule 59 motion reasserts a federal basis for relief from the

underlying conviction, we disregard its title and subject it to AEDPA’s limitations

on subsequent requests to issue the habeas writ. Cf. United States v. Pedraza, 466

F.3d 932, 933–34 (10th Cir. 2006). These limitations divest the district court of

jurisdiction to consider the merits of a subsequent “§ 2254 claim until this court




                                         -11-
has granted the required authorization.” In re Cline, 531 F.3d 1249, 1251 (10th

Cir. 2008); see also 28 U.S.C. § 2244(b)(3)(A).

      As the district court fairly observed, Richardson’s Rule 59 motion does

nothing more than rehash the arguments made in his habeas petition. Thus, in

essence, Richardson’s motion is properly construed as an unauthorized successive

habeas petition. Although the district court should have dismissed the motion for

lack of jurisdiction rather than deny it on the merits, see Spitznas, 464 F.3d at

1217, we interpret Richardson’s appeal of the denial of his motion to alter or

amend the judgment as an application to file a second or successive habeas

petition, id. at 1219. And having independently established that the claims from

Richardson’s Rule 59 motion are materially indistinguishable from those in his

original habeas petition, AEDPA mandates that we dismiss. 28 U.S.C.

§ 2244(b)(1) (“A claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior application shall be

dismissed.”).

                                 III. Conclusion

      Based on the reasons expressed above, we DENY Richardson’s request for

a COA and DISMISS this appeal. We also VACATE the district court’s order on

Richardson’s Rule 59 motion because it constituted a second § 2254 petition and

should have been transferred to this court. We therefore DENY Richardson’s




                                         -12-
request to file a second or successive habeas corpus petition. We GRANT

Richardson’s request to proceed in forma pauperis on appeal.

                                     ENTERED FOR THE COURT,

                                     Timothy M. Tymkovich
                                     Circuit Judge




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