                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           April 8, 2015
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                            No. 14-8055
                                                   (D.C. Nos. 2:12-CV-00039-NDF and
 RANDY LEE,                                              1:09-CR-00232-ABJ-1)
                                                                (D. Wyo.)
               Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Appellant seeks a certificate of appealability to appeal the district court’s denial of

his 28 U.S.C. § 2255 habeas petition.

       Following a jury trial, Appellant was convicted in federal court on several charges

arising out of his participation in a scheme to roll back odometers on vehicles sold

through his family’s used car dealership. We affirmed his convictions and sentence on

direct appeal. United States v. Lee, 401 F. App’x 336 (10th Cir. 2010). Appellant then

filed the instant § 2255 petition, in which he mainly raised claims of ineffective assistance



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
of trial counsel. The district court concluded that he was not entitled to relief on any of

his claims and denied his habeas petition.

       Appellant seeks a certificate of appealabilty to appeal the dismissal of two of his

ineffective assistance claims: (1) that trial counsel should have raised claims of

vindictive and/or selective prosecution; and (2) that trial counsel should have inquired

further or requested a juror replacement when one of the jurors informed the court mid-

trial that he had worked with the government’s handwriting expert at some point and had

known him for years.

       We conclude that reasonable jurists would not debate the district court’s denial of

either these claims. For substantially the same reasons given by the district court, we are

convinced Appellant has not alleged facts which would give rise to a viable claim of

vindictive or selective prosecution, much less shown that counsel was ineffective for

failing to raise such a claim.

       As for Appellant’s habeas claim relating to the possible juror bias issue, we have

reviewed not only the habeas appendix Appellant submitted on appeal but also the

pertinent trial transcripts from Appellant’s underlying criminal case.1 Based on this

review, we first note the record does not support Appellant’s allegation that the juror was

dishonest during voir dire. Rather, the record indicates that the juror did not realize he


       1
         “[F]ederal courts, in appropriate circumstances, may take notice of proceedings
in other courts, both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.” St. Louis Baptist Temple v. FDIC, 605 F.2d
1169, 1172 (10th Cir. 1979).

                                             -2-
knew the expert, whose full name was not provided at voir dire, until the expert began to

testify. Our review also persuades us that Appellant has not met his burden of showing

that trial counsel provided constitutionally ineffective representation by failing to request

a replacement or inquire further regarding the juror’s acquaintance with the expert. At

trial, counsel’s defense strategy was not to controvert the expert’s testimony that

Appellant had signed various title documents, but rather to argue that Appellant had

signed these documents without realizing or knowing the odometer readings on the

documents were incorrect.2 In light of the uncontroversial nature of the expert’s

testimony, we are not persuaded the juror’s acquaintance with this witness gave rise to

such an implication of prejudicial bias that counsel was constitutionally ineffective for

failing to inquire further or request replacement of the juror. See Hughes v. United States,

258 F.3d 453, 458 (6th Cir. 2001) (“Petitioner’s claim of ineffective assistance of counsel

is grounded in the claim that counsel failed to strike a biased juror. To maintain a claim

that a biased juror prejudiced him, however, Petitioner must show that the juror was

actually biased against him.” (internal quotation marks and brackets omitted)); see also

United States v. Brooks, 569 F.3d 1284, 1289 (10th Cir. 2009) (describing the very

limited circumstances in which we will find actual or implied juror bias, none of which

appear in this case).


       2
        A different handwriting expert testified for the defense that Appellant’s signature
had been forged on certain other documents. However, the defense expert did not review
or dispute the government expert’s conclusions regarding the documents he testified had
been signed by Appellant.

                                             -3-
       Finally, because Appellant has not “articulated facts which, if proven, would

entitle him to relief,” United States v. Weeks, 653 F.3d 1188, 1200 (10th Cir. 2011), we

reject Appellant’s argument that the district court erred in denying his habeas petition

without holding an evidentiary hearing.

       We therefore DENY Appellant’s request for a certificate of appealability and

DISMISS the appeal.

                                                   ENTERED FOR THE COURT



                                                   Monroe G. McKay
                                                   Circuit Judge




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