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

                                      TENTH CIRCUIT                           September 6, 2012

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

              Plaintiff – Appellee,
                                                              No. 12-5094
v.                                             (D.C. Nos. 4:09-CV-00045-TCK-TLW and
                                                       4:05-CR-00056-TCK-2)
BOBBY WAYNE HALEY, JR.,                                       (N.D. Okla.)

              Defendant – Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY,
                      AND DISMISSING APPEAL


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Bobby Wayne Haley Jr. was arrested after federal agents observed and recorded

him selling cocaine to a confidential informant. A jury trial followed, and Haley was

convicted of one count of distributing cocaine and one count of conspiring to do the

same. Owing to a long history of drug crimes, Haley was sentenced as a career offender

to 262 months imprisonment. After we upheld the criminal judgment on direct appeal,

Haley filed a motion to vacate his convictions and sentence under 28 U.S.C. § 2255. He

raised several grounds for relief, but he primarily asserted he was denied effective

assistance of counsel during trial and on direct appeal. Finding no constitutional errors,
the district court denied the motion, along with Haley’s request for a Certificate of

Appealability.1

       Haley was the subject of a sting operation conducted by the Bureau of Alcohol,

Tobacco and Firearms (ATF). Investigators originally targeted Rhonda Davis, Haley’s

distributor. Beginning in August 2004, investigators conducted several controlled buys

during which Davis was recorded selling cocaine to a confidential informant. Having

built a case against Davis, investigators devised a plan to bring in her supplier. They

staged a third controlled buy that December, just months after the second, only this time

instructed the confidential informant to arrange the meeting for a weekday afternoon,

when Davis was known to be unavailable. They hoped Davis would arrange for her

supplier to drop off the drugs on her behalf.

       The plan was successful. The confidential informant was waiting at a designated

meeting place when Haley arrived with the pre-arranged quantity of drugs. Haley told

the confidential informant he had been sent by Davis with instructions to deliver the

cocaine, and the confidential informant exchanged the cocaine for the buy money

supplied by investigators. The confidential informant wore a recording device, and the

transaction was observed by a surveillance team.

       A grand jury returned indictments against Haley and Davis. Both defendants were

charged with conspiracy to distribute cocaine and distribution of cocaine. Davis pleaded

guilty to the conspiracy charge and was rewarded by the government with a motion

       1
           The district court granted Haley’s motion to proceed in forma pauperis on
appeal.

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requesting a one-point reduction in her offense level for acceptance of responsibility, in

addition to the two-point reduction she would receive under U.S.S.G. § 3E1.1. Davis was

sentenced to 18 months imprisonment, to be followed by three years supervised release.

       Haley would not submit so easily. He proceeded to trial where he was convicted

of one count of distribution and one count of conspiracy to distribute. Prior to trial, the

government filed an information alleging Haley’s three prior drug convictions qualified

him for increased punishment. See 21 U.S.C. § 851(b). This raised the statutory

maximum sentence for the distribution and conspiracy counts to 30 years imprisonment.

See 21 U.S.C. § 841(b)(1)(C); 846. At sentencing, the district court concluded the prior

drug offenses qualified as “controlled substance offenses” under U.S.S.G. § 4B1.2(b) and

§ 4B1.1(a), and classified Haley as a career offender. The court sentenced Haley to 262

months imprisonment, a term driven primarily by his status as a career offender. The

reasonableness of Haley’s prison term was the only issue presented on direct appeal. We

affirmed the sentence. United States v. Haley, 529 F.3d 1308, 1310 (10th Cir. 2008).

       Next, Haley filed a pro se motion to vacate his convictions and sentence.2 See 28

U.S.C. § 2255. His motion, together with amendments added in the ensuing months,

included five claims. Three claims concerned the adequacy of his representation at the

trial stage. Specifically, he asserted his trial attorney provided ineffective assistance of

counsel by failing to (1) present an adequate defense to the conspiracy charge; (2) object

to the authenticity of the government’s audio recording; and (3) object to the career-

       2
         We liberally construe Haley’s pro se 28 U.S.C. § 2255 filings. See Ledbetter v.
City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

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offender enhancement at sentencing. In a fourth claim, he argued appellate counsel was

ineffective by failing to appeal from the denial of his motion to suppress the video

recording of the controlled buy. Finally, Haley asked the district court to vacate his

criminal judgment, citing as newly discovered evidence the indictment of one of the

investigators involved in his case in an unrelated matter.3

       The court evaluated each of Haley’s claims and concluded they were without

merit. Beginning with his contention that trial counsel failed to mount an adequate

defense to the conspiracy charge, the court concluded any deficient performance on this

issue (assuming there was deficient performance) could not plausibly have affected the

outcome at trial, because the evidence supporting the conspiracy charge was too strong:

“The trial evidence reflected that [the confidential informant] contacted Davis to make a

drug purchase, that Davis could not complete the sale herself, that Defendant arrived at

the location agreed to by [the confidential informant] and Davis with the agreed-upon

quantity of drugs, that Defendant completed the transaction, and that Davis knew that

Defendant completed the sale.” (R. 275-76.)

       Next, the court rejected Haley’s contention that his trial counsel should have

objected to the admission of an audio recording of a phone conversation between Davis

and the confidential informant. Haley claimed the recording was not properly

authenticated, but the court reviewed the record and found no irregularities. Davis’s



       3
          There were several additional claims in Haley’s supplemental filings, but the
district court refused to address them because they were untimely and not based on new
facts or evidence.

                                            -4-
voice, the court explained, was authenticated by a federal agent who testified he was

familiar with Davis’s voice from previous conversations. This was consistent with

Federal Rule of Evidence 901(b)(5), which permits authentication of audiotaped evidence

through lay testimony.

       Contrary to Haley’s arguments, the court did not fault trial counsel for failing to

object to the career-offender enhancement at sentencing. In his § 2255 motion, Haley

argued the convictions underlying the sentencing enhancement were invalid, either

because they resulted from coerced pleas or did not involve sufficient drug quantities.

Haley provided no documentation to support these contentions—no sworn statements, no

criminal records—and in the absence of supporting evidence, it saw no reason to discount

the probation office’s conclusion that the prior convictions were properly used to enhance

his sentence. “[H]ad [trial counsel] insisted on a § 851(b) inquiry or otherwise

challenged the convictions,” the court reasoned, “there is no reasonable probability that

such challenge would have been successful or changed the outcome.” (R. 279.)

       The court also rejected Haley’s claim of ineffective assistance of appellate counsel

based on a failure to appeal from the trial court’s denial of his motion to suppress the

digital recording of the drug transaction. The government had transferred the digital

recording file from the camera to a DVD and then erased the file from the camera in

order to free up space for later use. Haley challenged the reliability of the recording of

the drug buy on several grounds, but primarily because the DVD version introduced at

trial was not the “original,” as the word is used in the Federal Rule of Evidence 1001(3).

In his view, the original was the “real time” footage stored in the internal memory of the

                                            -5-
recording device. Following an evidentiary hearing, the trial court issued a 22-page order

ultimately admitting the DVD version—both as an “original” under Rule 1001(3) and as

a duplicate under Rule 1003. Haley’s appellate counsel found no non-frivolous basis for

challenging the admission of the recording, and the district court concluded “there was

not a reasonable probability that admission of the Video Recording would have been

reversed on appeal.” (R. 28.1.)

       Finally, the district court made short order of Haley’s newly discovered evidence

about the indictment of one of the agents involved in his case. The indictment came in an

unrelated matter and was handed down two years after the agent’s involvement in

Haley’s investigation. Moreover, the agent in question played only a limited role in the

investigation, assisting the lead agent in surveillance of the controlled buy. The lead

agent, whose testimony was far more important to the government’s case, was not named

in the indictment. Upon those observations, the court saw no reason to vacate the

judgment and sentence.

       Having reviewed the record and the district court’s order, we conclude its

reasoning was sound: Haley cannot demonstrate the representation he received was

anything short of adequate, and even if he could, we have no reason to believe better

representation would have changed the outcome in his favor.

       A COA may issue only if “the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is whether a

reasonable jurist could “debate whether (or, for that matter, agree that) the petition should

have been resolved in different manner or that the issues presented were adequate to

                                            -6-
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotations omitted). Neither standard was met here.

      We DENY the request for a COA and DISMISS this matter.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




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