                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 10, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-3057
          v.                                              (D. Kansas)
 BOUNTAEM CHANTHADARA,                       (D.C. Nos. 6:09-CV-01357-MLB and
                                                   6:94-CR-10128-MLB-1)
               Defendant - Appellant.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Bountaem Chanthadara, a federal prisoner

proceeding pro se, seeks a certificate of appealability (“COA”) to enable him to

appeal the denial of his 28 U.S.C. § 2255 motion for a new trial or dismissal of


      *
       This order is not binding precedent except under the doctrines of law of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.
the charges against him. For the following reasons, we deny him a COA and

dismiss this matter.



                                BACKGROUND

      In 1996, Mr. Chanthadara was convicted of robbing a restaurant in Wichita,

Kansas, and committing a murder in connection therewith. He was initially

sentenced to twenty years’ imprisonment for the robbery and to death for the

murder. On appeal, this court affirmed the convictions but reversed the death

sentence and remanded for resentencing. United States v. Chanthadara, 230 F.3d

1237 (10th Cir. 2000), cert. denied, 534 U.S. 992 (2001). In 2002, the district

court resentenced Mr. Chanthadara to life in prison without parole on the murder

count and left the twenty-year robbery sentence unchanged. Mr. Chanthadara did

not appeal that new sentence.

      Mr. Chanthadara filed this § 2255 petition in November 2009. He claimed

that his attorney had received a letter from the government in 2008 advising him

of the government’s recent discovery of an FBI scientist who gave false ballistics

testimony at his trial. The district court assumed that the § 2255 motion was

timely under the “newly discovered evidence” exception to an otherwise untimely

motion and concluded that the information about the false testimony was merely

impeaching evidence and would not have been significant enough in light of the

overwhelming evidence of guilt to produce an acquittal at a new trial. The

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district court accordingly denied Mr. Chanthadara’s § 2255 motion. He seeks to

appeal that denial.



                                  DISCUSSION

      The facts relating to Mr. Chanthadara’s conviction are fully set out in our

opinion in his direct appeal and need not be repeated here. See Chanthadara, 230

F.3d at 1244-46. On November 8, 2008, Gary Peterson, a lawyer who had

represented Mr. Chanthadara at trial and on appeal, received a letter dated

April 15, 2008, revealing that an FBI scientist, Kathleen Lundy, had provided

false expert testimony concerning ballistics at Mr. Chanthadara’s trial. There is

no dispute that the letter correctly revealed the false testimony. 1 See Berry, 2007

      1
       Ms. Lundy admitted to falsely testifying in another case. That case
described the circumstances as follows:
      In 1999, Kathleen Lundy took a tour of the Winchester plant that
      manufactured bullets and made a note that in 1996 the factory
      switched from purchasing blocks of lead that were required to be
      remelted before being made into bullets to purchasing billets which
      did not need to be remelted. Ragland v. Commonwealth, 191 S.W.
      3d 569, 580-81 (Ky. Sup. Ct. 2006). In the summer of 2001, in a
      Colorado case, she testified to this fact. Id. at 581. Subsequently,
      she was advised that her handwritten note was in error and that the
      factory had switched to purchasing billets in 1986, not 1996. Ms.
      Lundy notified the Colorado prosecutor of the error. Id. In January
      2002 she testified at a Daubert hearing to the 1996 date in the case of
      Ragland v. Commonwealth. She knew the date was an error but did
      not correct it. Id. At the Ragland trial she was impeached based on
      this error; she indicated she had misunderstood the question at the
      Daubert hearing and that she knew the date was in error when she
      testified to it. Id. She pled guilty to making a false statement under
                                                                       (continued...)

                                         -3-
WL 4225068, at *2 (“Ms. Lundy’s perjury was publicly announced by the

Associated Press on July 25, 2002[.]”). Additionally, on September 2, 2005, the

FBI announced that it would no longer use the compositional analysis of bullet

lead (“CABL”), which was the method Ms. Lundy used in Mr. Chanthadara’s case

to link the murder weapon to him.

      Mr. Peterson immediately sent the letter dated April 15, 2008, to

Mr. Chanthadara, although it is not clear exactly when Mr. Chanthadara received

the letter. On November 10, 2008, Mr. Peterson sent a letter to the United States

Attorney’s Office, but never received a reply. Mr. Chanthadara ultimately filed

this § 2255 motion on November 13, 2009.

      The government argued to the district court that Mr. Chanthadara’s motion

was untimely, whether it is construed as a Fed. R. Crim. P. 33(b)(1) motion for a

new trial or a § 2255 motion to vacate or set aside his sentence. The district court

assumed the motion’s timeliness: “Because Mr. Peterson did not receive any

response to his November 10, 2008, letter requesting additional information and

because it is unclear what date [Mr. Chanthadara] received a copy of the




      1
       (...continued)
      oath, a Class B misdemeanor in Kentucky. Id. A new trial was
      granted to Mr. Ragland.

Berry v. United States, 2007 WL 4225068, at *4 (E.D. Wash. Nov. 27, 2007)
(unpublished).

                                         -4-
government’s April 15 letter, the court will assume, without deciding, that

defendant’s § 2255 motion is timely.” Mem. & Order at 2-3, R. Vol. 1 at 125-26.

      The district court accordingly went on to analyze the merits of

Mr. Chanthadara’s claim that Ms. Lundy, “an FBI scientist and official of the

U.S. Department of Justice, gave untrue, misleading and unreliable testimony

during [his] trial concerning bullet lead analysis allegedly linking [him] to the

charged offenses, in violation of the Due Process Clause of the Fifth

Amendment.” Id. at 3 (quoting § 2255 Motion at 4). The court rejected that

claim, concluding in pertinent part as follows:

             The court finds that Ms. Lundy’s subsequent perjury and the
      fact that the FBI no longer uses CABL to be merely impeaching
      evidence. Regardless, there is no claim, and no evidence, that the
      government was aware of the falsity until long after [Mr.
      Chanthadara’s] trial. [Mr. Chanthadara] cannot claim that the
      government knowingly and intentionally used the falsity to obtain a
      conviction. . . .

             Moreover, [Mr. Chanthadara] has not claimed, and cannot
      claim, that [the] evidence was so prejudicial that it affected the
      judgment of the jury. The government’s case-in-chief lasted four
      days. The government presented 24 witnesses, including rebuttal
      witnesses. Some of these witnesses saw [Mr. Chanthadara] carry the
      9mm pistol, which was later determined to be the murder weapon,
      point the gun towards his own head after Mrs. Barbara Sun was shot,
      and then throw the gun into a river. [Mr. Chanthadara’s] palm print
      was also found on the broken glass from the display case at the
      Mandarin Chinese Restaurant.

             The transcript of the government’s witnesses’ testimony
      totaled approximately 723 pages. Ms. Lundy’s trial testimony
      consisted of 10 transcript pages. Her testimony was short and
      concerned only one piece of the government’s overwhelming

                                          -5-
      evidence that established [Mr. Chanthadara’s] guilt. Ms. Lundy’s
      testimony could not have been all that significant to the jury such
      that it would “probably produce an acquittal at a new trial.”
      Therefore, [Mr. Chanthadara] is not entitled to relief under § 2255.

Id. at 5-6. Mr. Chanthadara seeks a COA to appeal that conclusion.

      The issuance of a COA is jurisdictional. We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make this showing, Mr. Chanthadara must

demonstrate “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.”

Slack v. McDaniel, 529 U.S. 473, 484 (2002). Where the district court has

rejected a claim on its merits, the “petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Id.

      As the above excerpts indicate, the district court correctly resolved the

merits of Mr. Chanthadara’s claim. Because we have determined that no jurists of

reason would find it debatable whether the district court was correct in denying

Mr. Chanthadara’s § 2255 petition, we deny his application for a COA and

dismiss this matter.




                                         -6-
                        CONCLUSION

For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                    ENTERED FOR THE COURT


                                    Stephen H. Anderson
                                    Circuit Judge




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