                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 27 1998
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                      No. 97-6316
           v.                                           (W.D. Oklahoma)
 LE SON REED,                                       (D.C. No. CV-97-876-W)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , McKAY , and LUCERO , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Le Son Reed seeks a certificate of appealability permitting him to challenge

the district court’s denial of his motion, pursuant to 28 U.S.C. § 2255, to vacate,

set aside or correct his sentence.

      Mr. Reed was convicted in 1992 on multiple counts of drug trafficking

crimes and was sentenced to a term of 360 months imprisonment. We affirmed

the conviction and sentence on August 3, 1993.      United States v. Reed , 1 F.3d

1105 (10th Cir. 1993).



                                           A.

      Mr. Reed filed the instant petition on May 23, 1997, about four years after

his conviction became final and well beyond the April 23, 1997, one-year time

deadline established by the amendments to § 2255 in the Antiterrorism and

Effective Death Penalty Act of 1996, as interpreted by our decision in     United

States v. Simmonds , 111 F.3d 737, 745 (10th Cir. 1997). As a result, the district

court denied Reed’s § 2255 motion as time barred.

      Mr. Reed filed a motion for reconsideration, arguing that the government

had impeded his efforts to file, and that therefore the one-year limitations period

was extended by time attributable to the impediment. For this argument, he relied




                                           -2-
upon 28 U.S.C. § 2255(2), which deals solely with when the limitations period

begins to run, not to extensions of the one-year period once it has commenced.   1



      The facts asserted by Reed in support of his extension argument fall into

three general categories: (1) attempts prior to April 23, 1996, to obtain copies of

grand jury and trial transcripts (including opening arguments), jury instructions,

and other documents; (2) limited access to the law library beginning in August

1996, due to his placement in a segregated housing unit, and the unavailability of

copies of petition forms which he could use outside the library; and (3) his

transfer, on March 31, 1997, to another prison and the subsequent misplacement

of his legal papers by prison officials; these papers were not returned to him until

May 21, 1997, following which he promptly completed his petition and filed it

through the prison mail system two days later.

      Only the first of the three categories outlined above applies to the period

prior to April 23, 1996, and, therefore, is relevant to the commencement of the



      1
          The statute states that

      [a] 1-year period of limitation shall apply to a motion under this
      section. The limitation period shall run from the latest of . . . the
      date on which the impediment to making a motion created by
      governmental action in violation of the Constitution or laws of the
      United States is removed, if the movant was prevented from making
      a motion by such governmental action.

28 U.S.C. § 2255(2) (1998) (emphasis added).

                                           -3-
limitations period under § 2255(2). As to that category, Reed acknowledges that

by March 11, 1996, he had received everything he requested except for a copy of

the government’s opening statement. Appellants’ Br., App. V, Exhibit 15.

Nothing on these facts would qualify as an impediment to the commencement to

the limitations period on April 23, 1996. In that regard, the district court did not

err when it denied Reed’s Motion for Reconsideration by its Order filed

August 21, 1997.

       However, at the time of its order, the court did not have the benefit of our

decision in Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998), in which we held

that in appropriate exceptional circumstances equitable tolling principles apply to

the one-year limitations period under § 2255. Accordingly, assuming arguendo

that a liberal construction of Reed’s arguments gets us to the issue, the district

court did not consider whether the facts asserted by Reed, in categories (2) and

(3) above, constitute grounds for   extending the limitations period beyond April

23, 1996. Our own review of the record and briefs convinces us that as to

category two—limited library use and lack of forms—Reed’s bare allegations are

insufficient to invoke equitable tolling. There is no showing of actual prejudice.

Cf. Lewis v. Casey , 518 U.S. 343, 351 (1996).

       We find category three—loss of papers during transfer, from March 31,

1997, to May 21, 1997—to be somewhat more problematic. In view of the district


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court’s manifestly correct observation that Reed offers no explanation why he was

unable to file before March 31, 1997, and our requirement that the petitioner must

establish that he diligently pursued his claims,    see Miller v. Marr , 141 F.3d at

978, we are inclined to conclude that no basis for equitable tolling exists with

respect to this category either. In   Miller , the petitioner’s conviction became final

on October 4, 1993, and he therefore had almost four years to file his habeas

petition. After his petition was dismissed as time-barred, the petitioner in    Miller

argued that he had been denied access to certain legal materials from January

1995 until April 1997, and that the limitations period should have been tolled.

We expressly noted in that case that, because the petitioner could not explain how

lack of access to adequate legal materials for the last two years of the post-

conviction period–in that case almost four years–prevented the petitioner from

filing his petition during the first two years after his conviction, he had not shown

that he was diligent.   Id. (stating that the petitioner’s claims of lack of access to

legal materials “do[] not explain [his] lack of pursuit of his federal claims before”

his alleged lack of access materialized).     Here, Reed had a similar period–almost

four years–following the finality of his conviction in which to file his § 2255

petition.




                                             -5-
                                            B.

       However, to dispel any doubt we retain on the subject of timeliness, we will

examine Reed’s petition itself to determine whether Reed “has made a substantial

showing of the denial of a constitutional right” as required for the issuance of a

certificate of appealability. 28 U.S.C. § 2253(c)(2);   see also Davis v. Johnson ,

___ F.3d ___, 1998 WL 733731, at *3 (5th Cir. Oct. 21, 1998) (adopting a two-

step approach to certificate of appealability questions which raise procedural

issues, looking first to see whether the habeas petitioner “has made a credible

showing that his claim should not have been dismissed as time-barred,” and, if he

has, looking then to see whether he can make a “substantial showing of the denial

of a constitutional right”).

       Reed’s petition asserts six claims, which we set out below, along with a

summary of the facts alleged in support.

                1. Ineffective assistance of counsel because counsel failed to

       become an advocate. Mr. Reed provides no facts in support of this

       claim.

                2. Ineffective assistance of counsel because counsel failed to

       object to the magistrate judge’s participation in or interference with

       jury deliberations in violation of the petitioner’s right to have an




                                            -6-
      Article III judge conduct all trial proceedings.   2
                                                             Mr. Reed does not

      set forth any specific facts in the section of his petition setting forth

      this claim, but his petition as a whole seems to indicate that the

      magistrate judge considered questions from the jury, and received the

      verdict when it came in.

             3. Denial of petitioner’s right to be present at all stages of his

      trial when the court, in petitioner’s absence, received a note from the

      jury. 3 Mr. Reed states that the magistrate judge considered two

      2
        In support of this contention, Mr. Reed cites     United States v. Gomez , 490
U.S. 858 (1989). We think Gomez is easily distinguishable. First, the magistrate
judge in Gomez presided over voir dire , a much more critical phase of the trial, at
least as far as the judge’s involvement is concerned, than presiding over
proceedings during jury deliberation. Indeed, a legislative committee report cited
in Gomez states that the Federal Magistrates Act was intended to allow
magistrates to “accept returns of jury verdicts where the trial judge is
unavailable.” Id. at 869 (citing H.R. Rep. No. 94-1609, at 12). Second, defense
counsel in Gomez objected to the appointment of the magistrate judge. Mr.
Reed’s counsel not only did not object to the magistrate’s involvement, he
expressly consented thereto. Transcript, R. Tab 238, App. A. at 310. The
Supreme Court has held magistrate involvement proper, even at the           voir dire
stage, when the defendant’s counsel consents.        Peretz v. United States , 501 U.S.
923 (1991). For these reasons, Gomez is of no assistance to Mr. Reed.
      3
        It is unclear from the record whether claims (3) and (4) are ineffective
assistance of counsel claims, or are based on the alleged violation of some other
constitutional right. Mr. Reed does not refer to these claims as ineffective
assistance claims in the headings of his petition, but does state in the body of the
petition that “thus counsel was ineffective” because his counsel did not object to
the jury’s note to the court or the jury’s consideration of the audio tapes.
Memorandum in Support of Petition, R. Tab 238, at 9. We think that they must
necessarily be ineffective assistance of counsel claims, because Mr. Reed’s trial
counsel not only did not object to either the appointment of the magistrate judge

                                            -7-
      questions from the jury, namely, “May we listen to the audio tapes

      again?,” and “We need to understand the meaning of ‘distribution.’”

      Mr. Reed contends that he was absent when the magistrate judge

      made his decisions whether and how to answer these questions.

             4. Denial of petitioner’s right to be present at all stages of his

      trial when, in his absence, the jury was allowed to listen to audio

      tapes of the trial during jury deliberations. Mr. Reed alleges, with

      some support, see United States v. Kupau , 781 F.2d 740, 743 (9th

      Cir. 1986),   4
                        that when a jury listens to audio tapes of the trial, a

      defendant has a right to be present because that is a “stage of the

      trial” as defined by Fed. R. Crim. P. 43(a).



or the decision to allow the jury to hear trial tapes, the record reflects that Mr.
Reed’s trial counsel expressly consented to both events. Transcript, R. Tab 238,
App. A at 310, 313. In any event, it does not matter which way the claims are
styled, because we think the claims fail either way.
      4
       Kupau was a case in which an FBI agent who had sat at the government’s
counsel table was permitted to operate the tape recorder machine for the jurors
when they listened to the audio tapes of the trial. The defendant was not present
when the jury listened to the tapes.   Kupau , 781 F.2d at 742-43. Even in that
case, however, the Ninth Circuit held that the court’s decision to allow the FBI
agent to operate the tape machine was harmless error, because the defendant
could not show that he was prejudiced thereby.     Id. at 743. Mr. Reed’s case is
similar. His counsel expressly consented to the playing of the tapes, Transcript,
R. Tab 238, App. A. at 313, and therefore Mr. Reed’s claim must be analyzed as
an ineffective assistance claim. As such, Mr. Reed’s claim fails because he is
unable to show that the outcome of his trial would have been different had his
attorney objected.

                                              -8-
             5. Ineffective assistance of counsel because counsel failed to

      object to the trial judge’s absence during jury deliberations. This

      claim appears to be concurrent with the second claim, described

      above. 5

             6. Ineffective assistance of counsel because counsel failed to

      investigate the facts of the case. Mr. Reed alleges that his trial

      counsel failed to interview witnesses, and potential witnesses,

      including Lee Arthur Tucker, police officer Elic Bostic, Peggy

      Holzbough, and government informant Antonio Williams.

      Our review of the petition and its supporting documents reveals that some

of these allegations are conclusory and devoid of any substantive supporting facts.

Such unsupported allegations do not make the required substantial showing.    Cf.

Ruark v. Gunter , 958 F.2d 318, 319 (10th Cir. 1992) (stating that “naked

allegations” are not cognizable under federal habeas corpus statutes).


      5
        Mr. Reed here cites Riley v. Deeds , 56 F.3d 1117 (9th Cir. 1995), for the
proposition that the trial judge’s absence from a criminal trial, including absence
from proceedings after a jury begins deliberation, is structural error. We think
this case is not applicable here, because the trial judge in Riley simply left the
scene, leaving only his law clerk to preside. In Mr. Reed’s case, the trial judge
left a magistrate judge to preside over the proceedings, after procuring the
consent of both the government’s attorney and Mr. Reed’s trial attorney. R. tab
238, App. A. at 310. The Supreme Court has held that magistrate judges can
preside over even voir dire in criminal felony trials, when the defendant consents.
Peretz v. United States , 501 U.S. 923 (1991). Therefore, Mr. Reed’s citation to
Riley is inapposite.

                                          -9-
       Other allegations, if unaccompanied by an ineffectiveness of counsel claim,

are procedurally barred because they could have been raised on direct appeal, and

there is no showing of cause and prejudice, or fundamental miscarriage of justice

to excuse the failure to do so.   See United States v. Allen , 16 F.3d 377, 378 (10th

Cir. 1994).

       With respect to the ineffective assistance of counsel claims, Mr. Reed must

make a substantial showing both that his counsel’s performance was so seriously

deficient “that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,”       Strickland v. Washington , 466 U.S. 668, 687

(1984), and that Reed was prejudiced as a result. As to prejudice, Reed must

show “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”    Id. at 694. A

reasonable probability is a probability “sufficient to undermine confidence in the

outcome.” Id.

       The evidence of Mr. Reed’s guilt admitted during the trial of this case is

surveyed in our opinion on direct appeal.     United States v. Reed , 1 F.3d at 1106-

11. Nothing in Mr. Reed’s petition makes a showing sufficient to undermine our

confidence in the outcome of his trial.




                                            -10-
                                        C.

      For the reasons stated above, we conclude that Mr. Reed has failed to make

a substantial showing of the denial of a constitutional right. Accordingly, we

decline to issue a certificate of appealability, and we DISMISS the appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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