                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          June 9, 2011
                         UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                   TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 11-1081
 STEPHEN VINCENT HUNT,                            (D. C. No. 1:10-CV-00447-DME and
                                                   D. C. No. 1:06-CR-00155-DME-1)
           Defendant-Appellant.                                (D. Colo.)



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


       Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.



       Stephen Vincent Hunt, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2255 petition for a writ of habeas corpus. Because Hunt has failed to satisfy the standards

for the issuance of a COA, we deny his request and dismiss this matter.

                                             I

       In June 2007, a federal jury convicted Hunt on six counts of bank robbery in

violation of 18 U.S.C. §§ 2113(a) and (d) and six counts of using, carrying, brandishing,

or discharging a firearm during and in relation to each robbery in violation of 18 U.S.C. §


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
924(c). The district court sentenced Hunt to a term of 1,760 months’ imprisonment for all

twelve convictions. Hunt appealed his convictions. We affirmed the district court in

January 2009, and the Supreme Court denied certiorari. See United States v. Hunt, No.

07-1518, 2009 WL 175063 (10th Cir. Jan. 27, 2009), cert. denied, 129 S. Ct. 1687 (2009).

       In February 2010, Hunt filed a § 2255 habeas petition alleging that his convictions

should be vacated because (1) the district court judge that presided over his trial and

sentencing was under investigation for judicial misconduct; (2) his rights under the

Speedy Trial Act, 18 U.S.C. §§ 3161-74, were violated; (3) the indictment against him

was deficient; and (4) he received ineffective assistance from trial counsel in violation of

his Sixth Amendment rights. In February 2011, the district court denied Hunt’s habeas

petition in a lengthy and very thorough memorandum and order. Following the district

court’s order, Hunt filed with this court a notice of appeal and an application for a COA.

                                              II

       A petitioner must obtain a COA in order to appeal a district court’s denial of a

habeas petition. 28 U.S.C. § 2253. A COA may be issued only upon a “substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). Where a district court

has rejected a petitioner’s constitutional claim on the merits, the petitioner “must

demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                             III

       In his application for a COA, Hunt argues that the district court erred in denying

                                              2
his habeas petition because (1) the district court judge who presided over his trial and

sentencing was being investigated for judicial misconduct; (2) his right to a speedy trial

was violated; (3) he is innocent of the crimes for which he was convicted; and (4) he

received ineffective assistance from his trial attorney. For the reasons discussed below,

we conclude that Hunt is not entitled to a COA based on these arguments.

A.     Judicial Misconduct

       Hunt first claims that his convictions should be vacated because the district court

judge who presided over his trial and sentencing was being investigated for judicial

misconduct. According to Hunt, the fact that the judge was under investigation rendered

the judicial proceedings fundamentally unfair to him.

       We note that because Hunt failed to raise this issue on direct appeal, he is

procedurally barred from raising it in a habeas petition. See United States v. Challoner,

583 F.3d 745, 749 (10th Cir. 2009) (A defendant may not file a habeas petition “to test

the legality of matters which should have been raised on appeal.”). But even if Hunt had

not waived this issue, we conclude that he is not entitled to a COA on this basis. It is

undisputed that the judicial misconduct charges against the district court judge were

unrelated to Hunt’s prosecution. See ROA, at 107-11. Further, Hunt does not allege, and

the record does not indicate, that the district court judge acted improperly during trial or

sentencing or that the judge prejudiced Hunt in any way. We therefore conclude that




                                              3
reasonable jurists would agree that the district court’s1 denial of Hunt’s habeas petition on

this basis was proper.

B.     Speedy Trial Act

       Next, Hunt argues that his convictions should be vacated because the district court

violated his rights under the Speedy Trial Act, 18 U.S.C. §§ 3161-74, when it allowed

more than seventy days to pass between his first trial and his second trial.2 “The Speedy

Trial Act requires that a federal criminal trial commence within seventy days of the later

of the filing of the information or indictment or the defendant’s initial appearance.” 18

U.S.C. § 3161(c)(1). When a mistrial has occurred, “the [second] trial shall commence

within seventy days from the date the action occasioning the mistrial becomes final.” Id.

§ 3161(e). This seventy-day period, however, can be tolled for a number of reasons. For

example, if the court holds a hearing on a pretrial motion, the clock stops from the time

the motion is filed until “the conclusion of the hearing” on the motion. Id. §

3161(h)(1)(D); see United States v. Smith, 569 F.3d 1209, 1211 (10th Cir. 2009).

       It appears that Hunt waived his right to assert a claim under the Speedy Trial Act

because, prior to his second trial, he did not move to dismiss the indictment on this basis.

Under the Act, the “[f]ailure of the defendant to move for dismissal prior to trial . . . shall

       1
         As a result of the judicial misconduct proceedings, and prior to the date Hunt
filed his habeas petition, the district court judge presiding over Hunt’s case resigned.
Hunt’s petition was adjudicated by a different judge in the District of Colorado.
       2
        The first trial ended when the district court declared a mistrial as a result of the
prosecution failing to disclose Brady material to the defense prior to trial. See ROA at
264-65.

                                               4
constitute a waiver of the right to dismissal.” 18 U.S.C. § 3162(a)(2). We note that prior

to the second trial, Hunt’s attorney informed the court that Hunt “had always wanted an

earlier trial.” ROA at 258. This statement, however, cannot properly be deemed a

motion to dismiss. See United States v. Lugo, 170 F.3d 996, 1001 (10th Cir. 1999)

(holding that a defendant did not preserve his rights under the Speedy Trial Act when

defense counsel informed the court that “he might file a motion to dismiss on speedy trial

grounds”). We also note that prior to the second trial, Hunt submitted a pro se letter to

the district court asking that his trial be moved from June to May 2007. ROA at 258.

Hunt, however, did not request dismissal under the Act. And even if he had done so, his

letter would not have been sufficient for this purpose. See United States v. Williams, 605

F.3d 556, 573 (8th Cir. 2010) (holding that a claim under the Speedy Trial Act was

waived after the district court struck the defendant’s pro se motion to dismiss the

indictment because the defendant was represented by counsel); see also United States v.

Hildreth, 485 F.3d 1120, 1124 (10th Cir. 2007) (striking pro se motion because the

defendant was represented by counsel).

       But regardless of whether Hunt waived his rights under the Speedy Trial Act, the

record indicates that the district court complied with the requirements of the Act. The

court granted Hunt’s motion for a mistrial on January 17, 2007. Dist. Ct. Dkt. #113. This

started the seventy-day clock under 18 U.S.C. § 3161(e). Seven days later, on January

25, Hunt moved to dismiss the third superseding indictment, and he requested a hearing

on the motion. Dist. Ct. Dkt. #128. The district court subsequently held a hearing on

                                             5
May 29, where it denied Hunt’s motion from the bench. Dist. Ct. Dkt. #162. Under the

Speedy Trial Act, the time during which Hunt’s motion to dismiss was pending—from

January 25 to May 29—is excluded from the seventy-day calculation. See 18 U.S.C. §

3161(h)(1)(D); see also Henderson v. United States, 476 U.S. 321, 326-30 (1986).

Therefore, when Hunt’s retrial began on June 4, only twelve days had elapsed for

purposes of the Act—seven days between the order of mistrial and the date Hunt filed his

motion to dismiss, and five days between the district court’s denial of Hunt’s motion and

the date the second trial began. Accordingly, Hunt’s rights under the Speedy Trial Act

were not violated.

C.     Actual Innocence

       Hunt alleges in his application for a COA that he is entitled to habeas relief

because he is innocent of the crimes for which he was convicted. Although Hunt did not

assert actual innocence in his initial habeas petition, he did argue in his reply to the

government’s opposition that “[he was] innocent.” ROA at 229. In any event, to the

extent Hunt argues he is innocent, he is not entitled to COA on this basis. This is because

Hunt has not provided us with any argument in support of his claim of innocence. He

neither points to any evidence that could contradict the evidence presented at trial nor

indicates why we should conclude that he is innocent. Further, the evidence elicited at

trial, as outlined in the district court’s ruling in this case, overwhelmingly supported

Hunt’s convictions. We therefore conclude that reasonable jurists would agree that the

district court properly denied Hunt’s habeas petition on this basis.

                                               6
D.     Ineffective Assistance of Counsel

       In his habeas petition, Hunt argued that his attorney was ineffective in a number of

ways. The district court disagreed with each of Hunt’s assertions. In his application for a

COA, Hunt contests only the district court’s conclusion that he is not entitled to habeas

relief on the basis that his attorney should have called an expert witness to rebut the

government’s DNA expert.3 The district court concluded that because Hunt simply

alleged in conclusory fashion that defense counsel should have called such a witness, his

assertion was “simply too vague to . . . establish[] that he is entitled to § 2255 relief.” Id.

at 271-72.

       We conclude that reasonable jurists would agree that Hunt is not entitled to habeas

relief on this basis. In his § 2255 motion, as well as in his application for a COA, Hunt

does no more than simply allege that his attorney should have called a rebuttal witness

because the DNA evidence presented by the government was subject to more than one

interpretation. Id. at 41; Aplt. Br. at 4. Hunt does not explain why the DNA evidence

was unreliable, how a rebuttal expert would have aided in his defense, or how his

attorney’s failure to call a rebuttal expert was prejudicial to him. See Snow v. Sirmons,

474 F.3d 693, 724-25 (10th Cir. 2007) (rejecting ineffective assistance of counsel claim

when habeas petitioner failed to indicate “why counsel’s failure to object to the evidence

was deficient and how such alleged failure prejudiced him”). Because Hunt alleges only

       3
        The government’s expert testified that the DNA obtained from a ski mask
recovered after the second robbery matched Hunt’s DNA and the DNA of his girlfriend.
ROA at 262.

                                               7
that his attorney should have called a rebuttal witness, reasonable jurists would agree that

the district court correctly denied Hunt’s habeas petition on this basis.

                                             IV

       The district court denied Hunt’s request to proceed on appeal in forma pauperis,

concluding that his habeas petition was “not taken in good faith.” Dist. Ct. Dkt. #315.

We likewise deny Hunt’s request to proceed in forma pauperis because we conclude that

he did not present any non-frivolous arguments in his application for a COA.

                                              V

       Accordingly, Hunt’s application for a COA is DENIED, his request to proceed in

forma pauperis is DENIED, and this matter is DISMISSED.



                                                  Entered for the Court



                                                  Mary Beck Briscoe
                                                  Chief Judge




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