                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 12, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 12-2184
                                            (D.C. Nos. 1:11-CV-00037-MV-LAM
       v.
                                                 and 1:03-CR-00477-MV-1)
                                                      (D. New Mexico)
ERIC LAMONT JOHNSON,

             Defendant - Appellant.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY


Before HARTZ, EBEL, and MURPHY, Circuit Judges.




      This matter is before the court on Eric Johnson’s pro se request for a

certificate of appealability (“COA”). Johnson seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).

Because Johnson has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.

      In March of 2003, a federal grand jury returned an indictment against

Johnson charging him with: (1) being a felon in possession of a firearm;

(2) possessing marijuana with intent to distribute; and (3) possessing a firearm
during or in relation to a drug trafficking offense. Johnson proved unable to work

with counsel. 1 Eventually, acting pro se but with the assistance of stand-by


      1
       The magistrate judge summarized the proceedings during this period as
follows:

             Federal Public Defender Joseph Gandert was appointed to
      represent Defendant in his criminal case. On August 14, 2003, Mr.
      Gandert filed a motion to suppress evidence and, on January 27,
      2004, the Court held a hearing on the motion and denied the motion
      on February 25, 2004. On September 24, 2003, Mr. Gandert filed a
      motion to withdraw as counsel, stating that “[t]he attorney-client
      relationship has deteriorated to such an extent that defense counsel
      cannot effectively represent Mr. Eric Johnson in this case.” Two
      days later, Mr. Gandert filed a motion to withdraw his motion to
      withdraw as counsel, stating that “Defendant, Eric Johnson, has
      indicated that he wants Joseph W. Gandert, Assistant Federal Public
      Defender to continue to represent him as counsel in his case.”
      Defendant’s trial was set for May 17, 2004 and, on April 21, 2004,
      Mr. Gandert filed a second motion to withdraw as counsel, stating
      that “[t]he attorney-client relationship has broken down to such an
      extent that defense counsel cannot effectively represent Mr.
      Johnson.” The Government opposed the motion, stating that it would
      be prejudiced by any further delays, especially because one of its
      witnesses was activated by the National Guard and might be
      unavailable at a future date. The Court held a hearing on the motion
      to withdraw as counsel, and entered an order granting the motion.
      The Court next appointed Douglas Couleur to represent Defendant
      and rescheduled his trial for August 16, 2004.

             On July 14, 2004, Defendant filed a pro se motion asking that
      Mr. Couleur be dismissed as his counsel for failing to conduct an
      investigation Defendant asked him to do, for failing to answer
      Defendant’s phone calls, for failing to discuss a plan for the trial, and
      for dissuading witnesses from testifying for Defendant at the trial.
      The Court vacated the trial, held a hearing on the motion, granted the
      motion, and next appointed Ann Steinmetz to represent Defendant.
      The Court reset Defendant’s trial for October 18, 2004. On
                                                                        (continued...)

                                         -2-
counsel, Johnson pleaded guilty to possessing a firearm during or in relation to a

drug trafficking offense. Shortly thereafter, however, Johnson moved to

withdraw his guilty plea and for appointment of substitute stand-by counsel. The

district court denied Johnson’s motion to withdraw his guilty plea. As noted by

this court on direct appeal, “[v]arious circumstances intervened to delay

sentencing.” United States v. Johnson, 376 F. App’x 858, 860 (10th Cir. 2010).

Those circumstances are set out in detail in the magistrate judge’s Report and

Recommendation. Suffice to say, competency proceedings and psychological

evaluations, coupled with additional changes in counsel, consumed approximately

three years. Ultimately, the district court concluded Johnson was competent when

he entered his guilty plea and was competent to proceed to sentencing. Finally, in

December 2008, the district court sentenced Johnson to a term of imprisonment of

180 months.

      This court affirmed the district court’s judgment of conviction. Johnson,

376 F. App’x at 862. Johnson then filed the instant § 2255 motion, raising ten

grounds for relief. 2 The matter was referred to a federal magistrate judge for

      1
       (...continued)
      September 22, 2004, at a status conference, Defendant stated that he
      wanted to proceed pro se, which the Court permitted him to do with
      Ms. Steinmetz acting as standby counsel.

Report & Recommendation at 2-4 (record citations omitted).
      2
          The magistrate judge accurately summarized Johnson’s habeas claims as
                                                                    (continued...)

                                         -3-
initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge

recommended that Johnson’s § 2255 motion be denied. Upon de novo review, the




      2
       (...continued)
follows:

      Defendant raises six ineffective assistance of counsel claims: (1) that
      defense attorney Mr. Gandert failed to investigate the underlying
      traffic stop that led to Defendant’s arrest in order to prepare for
      Defendant’s suppression hearing; (2) that third defense attorney Ms.
      Steinmetz told Defendant that he would receive a sentence of 60
      months and did not tell Defendant that he could be found to be a
      career criminal; (3) that Ms. Steinmetz failed to make the Court
      aware that Defendant told her on the day of his plea that he was
      hearing voices; (4) that fifth defense attorney Mr. Jones failed to file
      objections to Defendant’s presentence report, where the presentence
      report failed to note that Defendant had not been present at his
      sentencing for a California conviction, which conviction triggered
      the career offender enhancement of Defendant’s sentence; (5) that
      Mr. Jones failed to ask certain questions of the psychologist at
      Defendant’s competency hearing regarding Defendant’s alleged
      mental illnesses; and (6) that in the post-conviction motion to correct
      Defendant’s sentence, Mr. Jones failed to state that he and Defendant
      had spoken to Defendant’s California attorney who agreed to sign an
      affidavit showing that Defendant’s conviction in the California case
      was illegal. Defendant raises three claims for prosecutorial
      misconduct: (1) that the prosecutor, Mr. Ortega, incorrectly told
      Defendant that his sentence would be capped at 60 months; (2) that
      an unnamed prosecutor tampered with evidence in Defendant’s case;
      and (3) that an unnamed prosecutor interfered with the issue of
      Defendant’s competency at the time of his plea and caused
      Defendant’s counsel at the time, Mr. Romero, to withdraw from
      representing Defendant. Finally, Defendant claims that the Court
      erred by not allowing him to withdraw his guilty plea.

Report & Recommendation at 7-8 (record citations and footnotes omitted).

                                        -4-
district court overruled Johnson’s objections, adopted the Report and

Recommendation, and dismissed with prejudice Johnson’s § 2255 motion.

      The granting of a COA is a jurisdictional prerequisite to Johnson’s appeal

from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Johnson must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, he must demonstrate “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.” Miller-El, 537 U.S. at 336 (quotations

omitted). In evaluating whether Johnson has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Johnson need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Johnson’s appellate filings, the magistrate

judge’s Report and Recommendation, the district court’s order, and the entire

record before this court pursuant to the framework set out by the Supreme Court

in Miller-El, we conclude Johnson is not entitled to a COA. The district court’s

resolution of Johnson’s § 2255 motion is not reasonably subject to debate and the

                                          -5-
issues he seeks to raise on appeal are not adequate to deserve further proceedings.

In so concluding, this court finds it unnecessary, with one small exception, to

recapitulate the extensive analysis of Johnson’s claims set out in the magistrate

judge’s Report and Recommendation and the district court’s order.

      As to Johnson’s assertion that an unnamed prosecutor interfered with his

ability to retain attorney Joe Romero, we note the following. Neither of the

letters from Romero to Billie Ray Bennett support Johnson’s assertion of

prosecutorial misconduct. 3 As noted by the district court, the letter dated

December 29th merely reflects the financial terms upon which Romero agreed to

represent Johnson. The January 14th letter reflects Romero’s decision to return

Johnson’s payment:

      Enclosed please find [a check in the amount of $2500]. By this letter
      I am withdrawing from representing Mr. Johnson . . . at this time. I
      have learned that my Entry of Appearance would have been contested
      by the prosecutor in the case and will not be able to represent Mr.
      Johnson. However, if Mr. Johnson is successful in his motion to
      withdraw from his plea agreement, I will be able to represent him at
      trial.


      3
        It appears that in resolving this claim, the district court only reviewed one
of the two supposedly relevant letters. In particular, the district court referred to
the material attached to docket entry 30, the brief in support of Johnson’s
objections to the Report and Recommendation. Dist. Court Order at 13.
Unfortunately, in compiling that brief, Johnson appears to have inadvertently
included two copies of the letter dated December 29, 2004, while omitting any
copy of the letter dated January 14, 2005. Thus, by relying on the documents
attached to docket entry 30, the district court resolved this claim without
reference to the January 14th letter. Both letters are, however, attached to
Johnson’s § 2255 motion.

                                         -6-
Contrary to Johnson’s arguments, this letter does not in any way support a claim

of misconduct. Instead, given the procedural history set out above, it is not

remotely surprising the government would oppose, in the relevant time frame, yet

another attempt on the part of Johnson to change counsel. Thus, as noted by the

district court, this particular claim of misconduct is supported by nothing other

than self-serving hearsay. The district court appropriately denied collateral relief

on the claim.

      For those reasons set out above, this court DENIES Johnson’s request for a

COA and DISMISSES this appeal.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




                                         -7-
