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

                           FOR THE TENTH CIRCUIT                     September 20, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 13-5061
                                             (D.C. Nos. 4:12-CV-00324-TCK-FHM &
MICHAEL MCCALISTER,                                  4:99-CR-00020-TCK-1)
                                                           (N.D. Okla.)
             Defendant-Appellant.


        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
             AUTHORIZATION UNDER 28 U.S.C. § 2255(h)*


Before BRISCOE, Chief Judge, O’BRIEN and MATHESON, Circuit Judges.



      Michael McCalister, a federal prisoner proceeding pro se, seeks to appeal the

district court’s dismissal of his 28 U.S.C. § 2255 motion as an unauthorized second

or successive § 2255 motion. In the alternative, he seeks this court’s authorization to

proceed with second or successive § 2255 claims. See 28 U.S.C. § 2255(h). We

deny a certificate of appealability (COA) and deny authorization.




*
       This order is not binding precedent except under the doctrines of law of the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.
                                     Background

      McCalister was convicted in 1999 of conspiracy to possess with intent to

distribute controlled substances in violation of 21 U.S.C. § 846. He since has

filed several challenges to his conviction, including a § 2255 motion and other

motions. See United States v. McCalister, 453 F. App’x 776, 777 (10th Cir. 2011).

In that matter, in which McCalister appealed from the district court’s denial of a

Fed. R. Civ. P. 60(b) motion, we held that the Rule 60(b) motion was subject to the

authorization requirements of § 2255(h). See McCalister, 453 F. App’x at 779. We

also explicitly informed McCalister of the requirements for authorization for second

or successive § 2255 motions. See id.

      In June 2012, McCalister filed in the district court a new § 2255 motion setting

forth three claims: (1) the June 2011 convictions of former Tulsa police officers

Harold Wells and John K. Gray1 meant that crucial evidence at his trial was tainted

and should be excluded; (2) newly discovered evidence showed that a search warrant

for 2003 West Xyler in Tulsa was fabricated, so that evidence from that search

should have been excluded; and (3) the 2009 dismissal of conspiracy and continuing

criminal enterprise charges against co-defendants John Torrence and Orlando

Mackey “created a variance which renders the Conspiracy . . . Non-existant [sic],”


1
       Although McCalister states that Gray and Wells both were convicted in 2011,
it appears that Gray pleaded guilty in 2010. See In re Eskridge, No. 11-5082, at 4
(10th Cir. July 7, 2011) (unpublished order) (taking judicial notice of Gray’s guilty
plea).


                                         -2-
making him “actually Innocent of the Conspiracy conviction.” R. at 98 (emphasis

omitted). The district court dismissed the motion as an unauthorized second or

successive § 2255 motion. It also held that a transfer to this court was not in the

interest of justice under 28 U.S.C. § 1631 because “it was clear at the time of filing

that [the district] Court lacked jurisdiction,” given that in the 2011 decision “the

Tenth Circuit clearly explained that [McCalister] must obtain an order from the Tenth

Circuit Court of Appeals authorizing the district court to consider any second or

successive § 2255 motions.” R. at 191.

      McCalister filed a Fed. R. Civ. P. 59(e) motion to alter or amend the judgment

arguing that the § 2255 motion should not be considered second or successive

because the facts underlying the claims did not exist until long after he had filed his

first § 2255 motion. The district court denied the Rule 59(e) motion, holding that the

“claim alleging wrongful conduct by officers was ‘in existence’ at the time he filed

his prior § 2255 motions; [McCalister] was just unaware of the claim until he

discovered the possible corruption of such officers by virtue of their criminal

convictions.” R. at 200.

                              Certificate of Appealability

      To appeal, McCalister must secure a COA. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). To do so, he must show both “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


                                          -3-
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

       Relying on Panetti v. Quarterman, 551 U.S. 930 (2007), McCalister argues

that his new § 2255 motion was not successive because the factual basis for his

claims did not exist when he filed his first § 2255 motion. “In Panetti, the Supreme

Court concluded that a claim that was not ripe at the time the state prisoner filed his

first federal habeas petition would not be considered ‘second or successive’ under

[28 U.S.C.] § 2244(b) if the petitioner asserted the claim in a later habeas petition

once it became ripe.” In re Weathersby, 717 F.3d 1108, 1110 (10th Cir. 2013).

       As the district court recognized, however, the claim of police corruption

actually existed at the time of McCalister’s trial. At most, the convictions of Wells

and Gray provide further evidence to support an argument that McCalister could have

made as early as his trial. Accordingly, the first claim was not newly ripe, and the

restrictions of § 2255(h) properly apply. See id. at 1111 (“[I]f the purported defect

existed, or the claim was ripe, at the time of the prior petition, the later petition is

likely to be held successive even if the legal basis for the attack was not.” (internal

quotation marks omitted)); see also Leal Garcia v. Quarterman, 573 F.3d 214,

220-21 (5th Cir. 2009) (rejecting petitioner’s broad argument that any claim that was

“unavailable to him at the time of his first habeas petition” was not a successive

claim, because the argument “would permit petitioners filing later habeas petitions to

assert that, because the evidence was not previously discovered or discoverable, the


                                            -4-
claim was unavailable; therefore the later petition is non-successive”). No reasonable

jurist could debate the correctness of the district court’s dismissal of the first claim.

       It is unclear whether McCalister asserts on appeal that the second claim also

arises out of the corruption convictions. Compare Aplt. Br. at 3(d), 3(e)-3(g)

(discussing claims one and three, but not claim two); id. at 3(i) (appearing to concede

that the second claim was ripe before the corruption convictions), with id. at 3(j)-3(k)

(appearing to assert that claims one and two could only have been discovered as of

June 2011). A review of McCalister’s § 2255 motion, however, indicates that the

second claim is based on evidence other than the convictions. Accordingly,

McCalister’s Panetti theory does not apply to the second claim, and no reasonable

jurist could debate the correctness of the district court’s dismissal of this claim as

second or successive.

       As for the third claim, even accepting that the basis for the claim did not arise

until after McCalister filed his first § 2255 motion, the district court would still be

correct in its procedural ruling. Since 2009, when the dismissal claim allegedly

ripened, McCalister has filed in the district court at least one other motion that was

subject to the provisions of § 2255(h). See McCalister, 453 F. App’x at 777, 779.

The new § 2255 motion was filed after that motion, and therefore the new motion is

properly considered to be successive.

       Moreover, even if the district court had erred in its procedural ruling,

McCalister still must show that reasonable jurists “would find it debatable whether


                                           -5-
the petition states a valid claim of the denial of a constitutional right.” Slack,

529 U.S. at 484. This he cannot do. The dismissal of charges against Torrence and

Mackey does not mean that there was no conspiracy. See United States v. Coppola,

526 F.2d 764, 776 (10th Cir. 1975). And as a matter of law, the dismissal of charges

against a coconspirator does nothing to undermine McCalister’s conviction for

conspiracy. See id.; see also United States v. Rozin, 664 F.3d 1052, 1066 (6th Cir.

2012); United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998); United States

v. Dakins, 872 F.2d 1061, 1065 (D.C. Cir. 1989); United States v. Sasser, 974 F.2d

1544, 1560 (10th Cir. 1992); United States v. Kreimes, 649 F.2d 1185, 1193 (5th Cir.

1981). Further, to the extent that McCalister is claiming that the dismissals created a

variance, this court has held that a defendant cannot rely on subsequently adduced

evidence to prove a variance: “The question of fatal variance must be judged on the

record as it stood at the end of the evidence in the defendants’ own trial.” United

States v. Howard, 751 F.2d 336, 338 (10th Cir. 1984).

      McCalister also contends that the district court should have transferred the

motion to this court rather than dismissing it. But although the district court may

transfer a second or successive § 2255 motion to this court, it is not required to do

so. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). The district

court evaluated appropriate factors in considering whether a transfer would be in the

interest of justice. See id. at 1251-52. No reasonable jurist could conclude that the

district court was required to transfer the § 2255 motion rather than to dismiss it.


                                           -6-
      For these reasons, McCalister’s application for a COA is denied.

                              Request for Authorization

      McCalister alternatively requests authorization under § 2255(h) to file his

three claims. The applicable standard is set forth in § 2255(h)(1), requiring a prima

facie showing of “newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found [him] guilty of the offense.”

      This court already has examined whether the first and second claims merit

authorization in deciding a motion for authorization brought by one of McCalister’s

codefendants, Robert Eskridge. See In re Eskridge, No. 11-5082 (10th Cir. July 7,

2011) (unpublished order). With regard to the first claim, the majority2 concluded

that the evidence of the corruption convictions did not establish that no reasonable

factfinder would have found Eskridge guilty. See id. at 9, 12. “This court has little

or no basis to conclude that Gray’s and Wells’ testimony was so material that, if

impeached, Eskridge would not have been found guilty.” Id. at 10. With regard to

the second claim, the majority concluded that the challenge against the search

warrant was not supported by any newly discovered evidence. See id. at 14.

       McCalister asserts, without elaboration, that evidence procured by Wells and

Gray was crucial at trial. But, as with Eskridge, McCalister has provided “little or no


2
      Chief Judge Briscoe dissented and would have granted authorization. See
Eskridge, No. 11-5082, at 15.


                                         -7-
basis” to conclude that any evidence connected to or testimony by Gray and Wells

“was so material that, if impeached” with the evidence of the convictions, no

reasonable factfinder would have found McCalister guilty. Id. at 10. He has not

provided any transcripts to assess the materiality of Gray’s and Wells’ testimony.

And the information before us shows that during the trial, two government witnesses

other than Gray and Wells “testified directly as to . . . drug activity on the part of

McCalister.” United States v. Busby, 16 F. App’x 817, 825 (10th Cir. 2001). On

direct appeal, this court was “in accord” with the government’s position that the

evidence showed that there was “a ‘large scale’ drug conspiracy extending from 1991

to 1999 in the Tulsa, Oklahoma area,” and “that McCalister became a part of that

conspiracy in 1994 and continued to be a member thereof until 1999.” Id. In short,

McCalister has not made a prima facie showing that the new evidence of Wells’ and

Gray’s subsequent convictions, viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that no reasonable factfinder

would have found him guilty of a drug conspiracy, as § 2255(h)(1) requires.

       McCalister’s second claim alleges that he has new evidence undermining a

search warrant of 2003 West Xyler in Tulsa. He supports the claim with an August

2011 disclaimer from an Osage County Deputy Court Clerk stating that she cannot

locate a copy of any search warrant for that address. We deny authorization on the

same grounds that this court previously denied Eskridge authorization to pursue this




                                           -8-
claim: the search warrant’s validity was challenged at trial, and the August 2011

disclaimer is not newly discovered evidence. See Eskridge, No. 11-5082, at 14.3

      As for the third claim, as stated above, the fact that the government did not

pursue charges against Torrence and Mackey does not mean that McCalister was

actually innocent of a drug conspiracy. The dismissal of the charges against the

codefendants fails to show that no reasonable juror would have found McCalister

guilty. Therefore, the third claim also fails to satisfy § 2255(h)(1).

      McCalister’s request for a COA and his alternative request for authorization to

file a successive § 2255 motion are denied.

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




3
       In addition, there is no showing of McCalister’s relationship to 2003 West
Xyler to establish that he would have standing to challenge the search. See United
States v. Johnson, 584 F.3d 995, 998 (10th Cir. 2009) (“The burden of proof is on the
defendant to demonstrate that he has a reasonable expectation of privacy in the place
searched to establish his standing.”).


                                          -9-
