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

                            FOR THE TENTH CIRCUIT                          October 29, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-8046
                                                   (D.C. Nos. 1:18-CV-00012-SWS and
 JOEL S. ELLIOTT,                                        1:15-CR-00042-SWS-1)
                                                                (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING A CERTFICATE OF APPEALABILITY
                    _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                 __________________________________

       Defendant 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.

       I.     BACKGROUND

       On June 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.

       In 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.

       Defendant 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


                                             2
recorded conversations. See United States v. Elliott, 684 F. App’x 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.

       On 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.

       II.    DISCUSSION

       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.

       No 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


                                              3
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.

       Defendant 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’s trial.


                                             4
       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 a government agent, the questioning “lack[s] the police domination

inherent in custodial interrogation,” so Miranda does not apply. Id. at 1215.

       III.   CONCLUSION

       We DENY a COA and DISMISS the appeal. We GRANT Defendant’s motion to

proceed in forma pauperis.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




                                             5
