                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 October 5, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.                                                  No. 09-3149
                                              (D.C. Nos. 5:08-CV-04012-RDR
    WILLIAM LEONARD PICKARD,                    and 5:00-CR-40104-RDR-1)
                                                         (D. Kan.)
              Defendant-Appellant.
    _______________________________

    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.
                                                        No. 09-3150
    CLYDE APPERSON,                         (D.C. Nos. 5:08-CV-04013-RDR and
                                                  5:00-CR-40104-RDR-2)
              Defendant-Appellant.                       (D. Kan.)




          ORDER DENYING CERTIFICATE OF APPEALABILITY *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



      Appellants Clyde Apperson and William Leonard Pickard appeal from the

district court’s denial, without an evidentiary hearing, of their motions to vacate,

set aside, or correct their sentences under 28 U.S.C. § 2255. The district court

also denied their applications for a certificate of appealability (COA), and they

have each filed an application in this court for a COA. We deny both applications

for a COA and dismiss the appeals. We also deny appellants’ outstanding

motions to supplement the record or remand.


                          I. Facts and Procedural History

      Appellants each were convicted of one count of conspiracy to manufacture

lysergic acid diethylamide (LSD), in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 846, and one count of possession with intent to distribute LSD, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Apperson was sentenced to

thirty years’ imprisonment, and Pickard received a life sentence. We affirmed

their convictions on direct appeal in a lengthy opinion. United States v.

Apperson, 441 F.3d 1162 (10th Cir. 2006). We also denied their petition for

rehearing en banc, and the Supreme Court denied their petitions for writ of

certiorari. They now seek to appeal from the district court’s denial of their

motions for relief under 28 U.S.C. § 2255.

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           II. Appellants’ Applications for a Certificate of Appealability

      We must first address appellants’ pending applications for a COA because

the “[i]ssuance of a COA is jurisdictional.” United States v. Silva, 430 F.3d 1096,

1100 (10th Cir. 2005). “A COA should issue if the applicant has ‘made a

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

§ 2253(c)(2), which [the Supreme Court has] interpreted to require that the

‘petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,

542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(emphasis added)). If, however, the district court denied relief on an issue on a

procedural ground, without reaching the underlying constitutional claim, then the

two-part standard developed in Slack applies, and the petitioner 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 that ‘jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.’”

Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007) (quoting Slack, 529 U.S.

at 484).

      “The COA determination under § 2253(c) requires an overview of the

claims in the habeas petition and a general assessment of their merits.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also United States v.

Springfield, 337 F.3d 1175, 1177 (10th Cir. 2003). The statute forbids “full

                                           -3-
consideration of the factual or legal bases adduced in support of the claims.”

Miller-El, 537 U.S. at 336; see also Silva, 430 F.3d at 1100. Further, “in

applying for a COA, [a prisoner] is not required to prove the merits of his case,

[but] he must demonstrate ‘something more than the absence of frivolity or the

existence of mere good faith’ on his part.” Silva, 430 F.3d at 1100 (quoting

Miller-El, 537 U.S. at 338) (emphasis added).

      “Keeping in mind the standard of review governing a request for a [COA],

. . . the district court’s legal rulings on a § 2255 motion are reviewed de novo and

its findings of fact for clear error.” United States v. Kennedy, 225 F.3d 1187,

1193 (10th Cir. 2000). Under § 2255, the district court is required to conduct an

evidentiary hearing “unless the motions and files and records of the case

conclusively show that prisoner is entitled to no relief,” and the denial of an

evidentiary hearing is reviewed for an abuse of discretion. Kennedy, 225 F.3d

at 1193.

      Appellants argue that: (1) the government violated its obligations under

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972), by suppressing its witnesses’ criminal and informant backgrounds; (2) the

district court erred by failing to expressly address their Brady/Giglio claims

numbered A.1 through J.2 and failing to address specific claims on a

claim-by-claim basis; (3) the district court erred in denying Pickard’s claim that

the government violated his expectation of privacy by entering the premises near

                                          -4-
Wamego, Kansas, without a search warrant; (4) the district court erred in denying

their claim regarding prosecutorial misconduct based on the government’s alleged

failure to disclose exculpatory evidence and the government’s alleged alteration

of exhibits; (5) the district court erred in finding that the evidence was sufficient

to support the convictions when considering newly discovered evidence; (6) the

district court abused its discretion in denying their motion for discovery; (7) the

district court abused its discretion in denying their motion to amend and/or

correct the record; (8) the district court erred in denying their § 2255 motions

without a hearing; and (9) the district court erred in denying their applications for

a COA. See Aplt. Consol. Br. at 3-4.

      We have carefully reviewed appellants’ brief and the authorities cited

therein in light of the district court’s decision and the governing standards for the

issuance of a COA. We are not persuaded that the district court failed to address

any of their claims. With regard to issues the district court denied on the merits,

appellants have not demonstrated a reasonable probability that the outcome would

have been different if they had been provided with more impeachment evidence.

See United States v. Bagley, 473 U.S. 667, 682 (1985). As a result, we are not

persuaded that “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner, or that the

issues presented were adequate to deserve encouragement to proceed further.”

Kennedy, 225 F.3d at 1193 (quotation omitted). With regard to issues the district

                                          -5-
court denied on a procedural ground, appellants have not shown “that jurists of

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

denial of a constitutional right, and that jurists of reason would find it debatable

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

496 F.3d at 1137 (quotations omitted). As a result, appellants have not

demonstrated that the district court abused its discretion in denying their § 2255

motions without an evidentiary hearing. See Kennedy, 225 F.3d at 1193. The

request for a COA in both appeals is therefore denied.


                                 III. Pending Motions

      Six of appellants’ motions remain to be decided. On November 5, 2009,

Pickard filed a “Motion for Remand Regarding Uncontested Motions (Doc. 611,

612) and Unaddressed Claims[,]” and the government filed a response. The

motion is denied because Pickard’s filing of his notice of appeal one week after

he filed the referenced motions divested the district court of jurisdiction to decide

them, Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir.

2006), and because the motion improperly circumvents the page limit on

appellants’ opening brief by raising arguments that should have been fully

developed in the merits brief.

      On November 5, 2009, Pickard filed a “Motion to Supplement the Record

and Motion for Remand for Evidentiary Hearing on Recently Released IRS and


                                          -6-
FBI Records[,]” and the government filed a response. The motion is denied for

two reasons. First, Pickard has not demonstrated that the circumstances of this

case constitute the rare exception justifying the exercise of our “inherent

equitable power” to supplement the record on appeal with material not presented

to the district court. See Kennedy, 225 F.3d at 1192. Second, the motion

otherwise improperly circumvents our procedures for requesting permission to

proceed with a second or successive § 2255 motion. See United States v. Nelson,

465 F.3d 1145, 1147-49 (10th Cir. 2006) (holding that any motion containing a

habeas claim is subject to the authorization requirements for a second or

successive filing); Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006)

(holding that a habeas claim is any claim that “in substance or effect asserts or

reasserts a federal basis for relief from the petitioner’s underlying conviction”).

      On December 8, 2009, Pickard filed a “Motion for Leave to Supplement the

Record on Appeal[,]” and the government filed a response. The motion is denied

because Pickard never identified the exhibits he wished to add to the record, even

after we entered an order on January 12, 2010, which, in part, gave Pickard

permission to file an addendum with the exhibits he wished to add to the record

on appeal.

      On February 9, 2010, appellants filed a “Motion to Supplement the Record

and Motion for Remand for Evidentiary Hearing on Recently Released




                                          -7-
Multi-Agency HIDTA[ 1] Records[,]” and the government filed a response. The

motion is denied because it improperly circumvents our procedures for requesting

permission to proceed with a second or successive § 2255 motion.

      On May 13, 2010, appellants filed a “Motion to Supplement with Newly

Discovered Evidence of 1,089 OCDETF[ 2]/FBI Records[,]” which included a

motion to compel the government to respond on the merits. The motion to

supplement with newly discovered evidence is denied. Although appellants ask

us to compel the government “to address the issues in the motions, rather than

incorrectly characterizing as ‘second or successive’ the supplemental evidence to

an existing claim[,]” May 13, 2010, Mot. to Supp. at 2, they have not made any

showing that their motion to supplement with newly discovered evidence is not a

second or successive § 2255 motion under Tenth Circuit law. Cf. Douglas v.

Workman, 560 F.3d 1156, 1187 (10th Cir. 2009) (holding “under the unique

circumstances” presented that it was appropriate to treat prisoner’s “Brady claim

as a supplement to the prosecutorial misconduct claims he alleged in his initial

habeas petition”).

      On July 16, 2010, appellants filed a “Motion to Supplement with

Discovered Evidence of FBI Records Resolving Claim B.12[.]” The motion is

denied because it improperly circumvents our procedures for requesting

1
      High Intensity Drug Trafficking Areas program.
2
      Organized Crime Drug Enforcement Task Force.

                                        -8-
permission to proceed with a second or successive § 2255 motion. Appellants

have not shown that their motion to supplement with newly discovered evidence

is comparable to “the unique circumstances” that would justify treating it as a

supplement to a claim they alleged in their initial habeas petition. See Douglas,

560 F.3d at 1187.


                                  IV. Conclusion

      Appellants’ applications for a certificate of appealability are denied. All

outstanding motions are denied. The appeals are DISMISSED.



                                                    Entered for the Court


                                                    Jerome A. Holmes
                                                    Circuit Judge




                                         -9-
