                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 15, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 11-1108
    v.                                         (D.C. Nos. 1:04-CR-00229-LTB-1
                                                   and 1:08-CV-02447-LTB)
    MARK JORDAN,                                           (D. Colo.)

                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL *


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.



         Mark Jordan, a federal prisoner, seeks a certificate of appealability (COA)

to challenge the district court’s denial of his motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Exercising jurisdiction under

28 U.S.C. § 1291, we deny the COA and dismiss the appeal.




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       This order is not binding precedent except under the doctrines of law of the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

      Mr. Jordan was convicted of the stabbing death of fellow inmate David

Stone in the yard of the federal penitentiary in Florence, Colorado, and sentenced

to 420 months’ imprisonment. We affirmed his conviction and sentence. See

United States v. Jordan, 485 F.3d 1214 (10th Cir. 2007). As we recounted, two

eyewitnesses testified at trial that Mr. Jordan stabbed Mr. Stone then chased him

across the prison yard. Id. at 1216. Other witnesses observed Mr. Jordan

throwing an object, which turned out to be a knife, on the roof of a housing unit.

Id. at 1217. Additional evidence linking Mr. Jordan to the attack included his

DNA on the knife and a video recording of him approaching Mr. Stone

immediately before the attack and then chasing Mr. Stone (the attack itself

occurred outside the camera’s view). Id. Nonetheless, Mr. Jordan’s defense was

that another inmate, Sean Riker, stabbed Mr. Stone and forced the knife on

Mr. Jordan. Id. at 1220. Mr. Jordan then panicked, ran, and threw the knife on

the roof. Id. Neither Mr. Jordan nor Mr. Riker testified at trial.

      As part of his direct appeal, Mr. Jordan petitioned the United States

Supreme Court for a writ of certiorari, which the Court denied on November 13,

2007. Mr. Jordan consequently had one year from that date (until November 13,

2008) to file his § 2255 motion. See 28 U.S.C. § 2255(f)(1). 1


1
      Section 2255(f) provides several alternate triggers for the running of a
                                                                      (continued...)

                                        -2-
      On February 5, 2008, the district court appointed counsel to assist

Mr. Jordan with filing a petition for habeas corpus relief. On August 5, 2008,

appointed counsel filed a motion in the criminal case for a writ of habeas corpus

and for a new trial. On October 28, 2008, the district court denied the motion for

a new trial as untimely under Fed. R. Crim. P. 33(b)(2) and determined that to the

extent Mr. Jordan sought to challenge his conviction on constitutional grounds

under 28 U.S.C. § 2255, it had to be filed in a separate, collateral proceeding.

Appointed counsel then allegedly informed Mr. Jordan that counsel would not

represent him in a § 2255 proceeding. Cognizant that the one-year period for

filing a § 2255 motion would soon end, Mr. Jordan filed a pro se, sixty-five page

§ 2255 motion. On May 13, 2009, he filed an amended pro se § 2255 motion that,

by the district court’s count, contained seven claims with a total of 102 subclaims.

      The district court issued a detailed, 124-page order denying the § 2255

motions, finding many of the subclaims untimely or procedurally defaulted and

the rest meritless. The district court later denied Mr. Jordan’s motion for relief

from judgment under Fed. R. Civ. P. 59(e), and denied his application for a COA.

Mr. Jordan retained counsel and has renewed his request for a COA in this court.




1
 (...continued)
one-year limitations period, but, with one exception discussed below, Mr. Jordan
has not argued that any others apply in this case.

                                         -3-
                                   DISCUSSION

      A.     Standard of Review

      A COA is a jurisdictional prerequisite to an appeal from the denial of a

§ 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). A COA may be issued “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). For those claims the district court denied on the merits, Mr. Jordan

“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). For those claims the district court denied on a

procedural ground, Mr. Jordan must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and . . . whether the district court was correct in its procedural ruling.” Id.

Because Mr. Jordan proceeded pro se in the district court, we construe his filings

in that court liberally, but we do not act as his advocate. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).

      B.     Equitable Tolling

      In his application for a COA, Mr. Jordan first argues the district court

should have applied equitable tolling to subclaims in his amended motion that did

not relate back to his original motion because appointed counsel abandoned him

less than two weeks before the one-year deadline (November 13, 2008) to file his

                                          -4-
§ 2255 motion. The court concluded that Mr. Jordan was not entitled to equitable

tolling because he “failed to vigilantly oversee appointed counsel’s actions” and

had not acted with “reasonable diligence.” Aplt. App. at 1183. The court also

found that Mr. Jordan had not established an exception to § 2255(f)’s one-year

limitations period by making a showing of factual innocence. See id. at 1184.

      We acknowledge Mr. Jordan’s argument that the conduct of his appointed

counsel satisfies the requirements for equitable tolling laid out by the Supreme

Court in Holland v. Florida, 130 S. Ct. 2549 (2010); however, Holland left

equitable tolling to the discretion of district courts. Having considered the record

and Mr. Jordan’s arguments, we cannot say that the district court abused its

discretion by refusing to find that Mr. Jordan’s appointed counsel’s conduct was

so egregious as to warrant equitable tolling. Mr. Jordan was able to file his initial

§ 2255 motion within the deadline followed by an amended motion in May 2009.

Thus, Mr. Jordan is not entitled to a COA on this issue. 2



2
      While this appeal was pending, the United States Supreme Court decided
Maples v. Thomas, — S. Ct. —, No. 10-63, 2012 WL 125438 (Jan. 18, 2012), a
case discussing attorney abandonment and excuse for procedural default.
However, that case is distinguishable. The petitioner in Maples thought he was
being actively represented by counsel until after the pertinent deadline passed
(though he was not) and had no notice of his pending deadline, whereas
Mr. Jordan (1) knew his counsel would not file a § 2255 motion on his behalf,
(2) knew the deadline for his motion, and (3) filed a timely (and lengthy) § 2255
motion by that deadline. See id., 2012 WL 125438, at *11 (extraordinary
circumstances may be present when lawyer abandons client and client fails to act
on his own behalf).

                                         -5-
      C.     Relation Back

      Mr. Jordan next claims the district court erred in concluding that a number

of subclaims raised in his amended motion did not relate back to his original

motion. “An amended habeas petition . . . does not relate back . . . when it asserts

a new ground for relief supported by facts that differ in both time and type from

those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005).

A district court’s findings as to whether an amended claim relates back to an

original § 2255 motion are reviewed for abuse of discretion. United States v.

Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000).

      Mr. Jordan first argues that his amended subclaim that trial counsel was

ineffective in failing to affirmatively invoke his Fifth Amendment right to present

a defense and his Sixth Amendment right to compulsory process (Claim 3.a.)

relates back to one of his original claims, which he characterizes in the same

terms. However, Mr. Jordan initially contended only that “it was unreasonable

for trial counsel to present no evidence to explain why prisoner witnesses were

not cooperating with the defense,” Aplt. App. at 79, 3 and later contended that, but

for counsel’s failure to preserve an objection to the district court’s denial of a

proffer regarding the alternate perpetrator (Mr. Riker), the standard of review on

appeal would have been de novo, not an abuse of discretion, id. at 302. Clearly,


3
      Mr. Jordan handprinted his district court filings in all capital letters. We
omit the capitalization in this and all other quotations from those filings.

                                         -6-
the supporting facts for the amended subclaim were different in type than the

original claim, and the amended subclaim therefore did not relate back. See

Mayle, 545 U.S. at 650.

      Mr. Jordan next contests the district court’s finding that two amended

subclaims regarding trial counsel’s failure to interview Rudy Sablan and Frankie

Quinata and call them as witnesses (Claims 3.bb. and 3.cc.) did not relate back to

the original motion. As Mr. Jordan points out, the district court rendered a

decision on the merits of a different subclaim (Claim 3.ll.) that trial counsel was

ineffective in failing to investigate witnesses generally. In so doing, the court

referred to Mr. Sablan and Mr. Quinata specifically, notwithstanding the court’s

ruling earlier in its decision that the amended subclaims specifically regarding

them did not relate back. Compare Aplt. App. at 1249-50 with id. at 1267-68.

Accordingly, we will instead consider whether to grant a COA on the district

court’s merits decision regarding trial counsel’s failure to investigate or call

Mr. Sablan and Mr. Quinata rather than Mr. Jordan’s request for a COA on the

relation-back issue.

      As the district court concluded, Mr. Jordan did not show that counsel’s

failure to investigate Mr. Sablan or Mr. Quinata constituted ineffective assistance

under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984).

In the specific context of an uncalled witness, he must also show “that the

testimony of an uncalled witness would have been favorable” and that “the

                                          -7-
witness would have testified at trial.” Snow v. Sirmons, 474 F.3d 693, 731 n.42

(10th Cir. 2007) (brackets omitted) (quotation omitted).

      As to Mr. Quinata, Mr. Jordan provided only his own allegations of the

proposed testimony, not an affidavit or other competent evidence regarding the

content of Mr. Quinata’s proposed testimony or his willingness to testify.

Accordingly, he failed to meet his burden under Snow and therefore is not entitled

to a COA with regard to trial counsel’s failure to investigate or call Mr. Quinata.

      In contrast, Mr. Jordan provided a declaration from Mr. Sablan stating he

was willing to testify that he did not hear or see any person other than one

lieutenant visit Mr. Jordan in the Special Housing Unit (SHU) where Mr. Jordan

was placed after the attack on Stone. See Aplt. App. at 459-60. Mr. Jordan

contends this testimony would impeach that of a physician’s assistant,

Mr. Erzouki, who testified at trial that he examined Mr. Jordan in the SHU and

observed him flash a “V” sign with his hand to another inmate and state “Guy, I

get him out of your way.” Id. at 2419:21-23. However, at best, Mr. Sablan’s

proposed testimony would have impeached Mr. Erzouki as to the location of his

observation (which was one subject of defense counsel’s cross-examination of

Mr. Erzouki at trial), but any effect on the credibility of what Mr. Erzouki

observed would have been minimal; certainly not enough for us to conclude, in

light of the other evidence that Mr. Jordan stabbed Mr. Stone, that there is a

reasonable probability the outcome would have been different had trial counsel

                                         -8-
investigated Mr. Sablan and called him to testify. Accordingly, Mr. Jordan is not

entitled to a COA regarding trial counsel’s failure to investigate or call

Mr. Sablan.

      Regarding the next amended subclaim on which he seeks a COA,

Mr. Jordan originally alleged that trial counsel was ineffective in failing to allow

him to testify at trial. In his amended motion, he reiterated substantially the same

subclaim but added a new subclaim (Claim 4.a.) that the district court erred in

refusing defense counsel’s request for an advisement of his right to testify.

Mr. Jordan is not entitled to a COA on this ruling. While he mentioned the

district court’s refusal to give an advisement in his original subclaim, he claimed

error only in trial counsel’s actions, not those of the district court. Thus, the

amended subclaim’s supporting facts were different in type. Consequently the

amended subclaim did not relate back to the original motion. See Mayle,

545 U.S. at 650.

      The final relation-back issue on which Mr. Jordan seeks a COA consists of

four subclaims concerning the government’s failure to disclose exculpatory or

impeachment evidence, as required under Brady v. Maryland, 373 U.S. 83 (1963).

We will consider the first two amended Brady subclaims together before turning

to the other two.

      In the first subclaim (Claim 1.j.), Mr. Jordan alleged the government should

have disclosed video recordings of the SHU entry and a lieutenant’s corridor. In

                                         -9-
the second subclaim (Claim 1.k.), he contended the government should have

disclosed Tyrone Davis’s agreement with the government for lenient treatment in

exchange for his testimony against Mr. Jordan. Mr. Davis testified that he was

selling items in the prison yard when he witnessed Mr. Jordan push or punch

Mr. Stone in the back or side and run after Mr. Stone. Id. at 2369-72. Mr. Jordan

alleged that Mr. Davis has since admitted his testimony was perjured. Id.

at 631-32.

      Mr. Jordan does not argue that these amended subclaims relate back.

Instead, he contends that he only discovered this evidence in June 2008, less than

one year before he filed his amended § 2255 motion, and therefore the amended

subclaims were timely under § 2255(f)(4), which triggers a one-year period for

filing a § 2255 motion from “the date on which the facts supporting the claim or

claims presented could have been discovered through the exercise of due

diligence.” However, Mr. Jordan has not satisfied the “due diligence” portion of

the § 2255(f)(4) inquiry. Concerning the video recordings, he alleged only that he

did not discover them until June 2008 “through investigations of staff and other

prisoners.” Aplt. App. at 630-31. Regarding Mr. Davis, he maintained that,

“following the trial in this case,” which took place in August 2005, Mr. Davis

contacted him to apologize for testifying falsely against him and revealed the

agreement with the government. Id. at 268. Mr. Jordan added, in his reply in

support of his amended § 2255 motion, that he “did not become aware of the

                                        -10-
undisclosed Davis agreement or of Davis’ willingness to now admit his testimony

was perjured until June 2008.” Id. at 632. Because Mr. Jordan did not explain

why he could not have obtained any of this information at an earlier date through

diligent efforts, a COA is not warranted on these subclaims.

      In the third amended Brady subclaim that Mr. Jordan claims relates back to

his original § 2255 motion (Claim 1.l.), he alleged the government should have

disclosed Mr. Davis’s work record because it would show that, at the time of the

attack, Mr. Davis was in the prison food service building, not in the yard, which

suggests he could not have witnessed the attack. Id. at 270. Mr. Jordan contends

this amended subclaim relates back to one paragraph in his original motion

supporting his claim of actual innocence, that “one witness states he was in food

service with Tyrone Davis at time of homicide and neither did [n]or could have

witnessed assault from their location.” Id. at 109, ¶ 281. We disagree. The

original subclaim centered on a different witness and did not raise a Brady issue

with regard to Mr. Davis’s work record. Accordingly, the factual basis for the

amended subclaim differed in type from the original claim, and the amended

subclaim therefore did not relate back to the original motion. See Mayle,

545 U.S. at 650. Thus, Mr. Jordan is not entitled to a COA on this subclaim.

      The final amended Brady subclaim that Mr. Jordan claims relates back to

his original § 2255 motion (Claim 1.m.) concerns certain material subject to

protective orders that permitted disclosure to his trial counsel but barred

                                         -11-
disclosure to him personally. He claims the government was required to disclose

the material to him personally under Brady and Giglio v. United States, 405 U.S.

150 (1972). 4 He argues this subclaim relates back to a claim in his original

motion that counsel was ineffective for agreeing to the protective orders without

informing or consulting with him. We again disagree. The amended subclaim is

based on facts that are different in type than those in the original claim. The

amended subclaim therefore does not relate back to the original motion, see

Mayle, 545 U.S. at 650, and Mr. Jordan is not entitled to a COA on it.

      D.     Procedural Default/Brady Claims

      Mr. Jordan next seeks a COA regarding the district court’s conclusion that

eight Brady subclaims (Claim 1., subclaims b.-i.) were procedurally defaulted

under United States v. Frady, 456 U.S. 152 (1982). Under Frady, the “failure to

raise an issue either at trial or on direct appeal imposes a procedural bar to habeas

review.” United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir. 2002). 5

A § 2255 movant may overcome procedural default by establishing cause and

actual prejudice, Frady, 456 U.S. at 167 (quotation omitted), or by showing that a

4
       Giglio mandates disclosure of evidence, under Brady standards, that affects
the credibility of a witness whose testimony “may well be determinative of guilt
or innocence.” Giglio, 405 U.S. at 154 (quotation omitted).
5
      A noted exception to the application of Frady to § 2255 proceedings is for
claims of ineffective assistance of counsel, see United States v. Galloway, 56 F.3d
1239, 1240-41 (10th Cir. 1995) (en banc), but Mr. Jordan has not claimed that
counsel was ineffective for failing to raise any of these Brady subclaims on direct
appeal.

                                        -12-
constitutional error “has probably resulted in the conviction of one who is

actually innocent,” Murray v. Carrier, 477 U.S. 478, 496 (1986). To show cause,

a petitioner must identify “some objective factor external to the defense [that]

impeded . . . efforts to comply with the [relevant] procedural rule.” Id. at 488.

      The district court determined that Mr. Jordan had not shown cause under

the Murray standard for failing to raise these Brady claims on direct appeal. As

he argued in his Rule 59(e) motion in the district court, Mr. Jordan contends that

his Brady claims as a group are not subject to procedural default on collateral

review because he did not discover the factual bases of these claims until after his

trial (and, for some claims (he does not specify which) until after his direct

appeal). He concludes it would have been inappropriate or impossible to raise

these claims on direct appeal because there would have been no district court

record for review. Mr. Jordan also argues that the district court erred in

concluding that three specific Brady subclaims were procedurally defaulted.

      We need not decide whether a Frady analysis is inapplicable in these

circumstances. The district court decided these subclaims on a procedural

ground, so Mr. Jordan must show “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right

and . . . whether the district court was correct in its procedural ruling.” Slack,

529 U.S. at 484 (emphasis added). Under Brady, the failure to disclose evidence

favorable to a criminal defendant “violates due process where the evidence is

                                         -13-
material either to guilt or to punishment.” Brady, 373 U.S. at 87. “For the

evidence to be material, there must be ‘a reasonable probability that the result of

the trial would have been different if the suppressed documents had been

disclosed to the defense.’” United States v. Ford, 550 F.3d 975, 981 (10th Cir.

2008) (quoting Strickler v. Greene, 527 U.S. 263, 289 (1999)). Having reviewed

Mr. Jordan’s arguments regarding the materiality of the evidence allegedly

withheld in violation of Brady in light of the other evidence at trial, we conclude

he has not made a sufficient showing of Brady materiality. Thus, his petitions

fail to state “a valid claim of the denial of a constitutional right.” Slack, 529 U.S.

at 484. Accordingly, we deny a COA on these subclaims.

      E.     Procedural Default/Intrusion on Attorney-Client Relationship

      Mr. Jordan next claims the district court erred in applying procedural

default to his subclaim that the government intruded on attorney-client privilege

by monitoring communications in non-contact visiting booths at the prison where

he was incarcerated without disclosing the monitoring (Claim 2.g.). He argues he

did not discover this alleged violation until sentencing and therefore could not

have raised it on direct appeal because there was no factual record to consider.

He also contends the issue requires further factual development to determine

whether there is constitutional error.

      To the extent Mr. Jordan is renewing his contention that Frady’s procedural

default rule does not apply when there is an insufficient record for consideration

                                         -14-
of an issue on direct appeal (other than ineffective assistance of counsel), we

again decline to consider it because he has not shown “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right.” Id. at 484. Thus, we deny a COA on this subclaim.

      F.     Merits of one Brady Subclaim

      Finally, Mr. Jordan contends the district court erred in ruling on the merits

of one Brady subclaim relating to a lieutenant’s log book (Claim 1.a.). As with

his subclaim regarding trial counsel’s failure to investigate and present

Mr. Sablan’s testimony, Mr. Jordan contends that the log book would show that

the physician’s assistant, Mr. Erzouki, was mistaken about the time and location

of his examination of Mr. Jordan.

      The district court concluded that the lieutenant’s log book was not material

under Brady for two reasons. First, defense counsel used other evidence at trial

to impeach Mr. Erzouki regarding the time and location of the examination, and

second, nothing in the undisclosed log book suggested Mr. Jordan could not have

made the “V” sign or stated to the other inmate, “Guy, I get him out of your

way.” We agree with the district court’s analysis and therefore deny a COA on

this subclaim.




                                         -15-
                                CONCLUSION

      For the foregoing reasons, we DENY Mr. Jordan’s application for a

certificate of appealability and DISMISS his appeal.


                                             Entered for the Court



                                             Paul J. Kelly, Jr.
                                             Circuit Judge




                                      -16-
