                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS June 13, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                             No. 12-6277
                                               (D.C. Nos. 5:12-CV-00733-L and
 WILLIAM BERNARD FREEMAN,                            5:10-CR-00165-L-1)
                                                         (W.D. Okla.)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant William Bernard Freeman was convicted of bank robbery and

sentenced to serve a 210-month term of imprisonment. United States v. Freeman,



      *
        This order and judgment is not binding precedent except under the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.
451 F. App’x 783, 784 (10th Cir. 2011). His conviction was affirmed by this

court. Id. at 796. On June 27, 2012, Freeman filed a motion seeking a new trial

pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. On the

same day, he also filed a motion to vacate, set aside, or correct sentence pursuant

to 28 U.S.C. § 2255. The court entered a written order and separate judgment

denying both motions on October 9, 2012. Freeman now appeals the denial of his

Rule 33 motion and also seeks a certificate of appealability (“COA”) so he can

appeal the dismissal of the § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B)

(providing a movant may not appeal the disposition of a § 2255 motion unless he

first obtains a COA).

      The district court first addressed Freeman’s Rule 33 motion, in which he

asserted he is entitled to a new trial because newly discovered evidence shows he

was actually innocent of the bank robbery conviction. A defendant is not entitled

to a new trial based on newly discovered evidence unless the evidence is “more

than impeaching or cumulative,” “material to the issues involved,” and “would

probably produce an acquittal.” United States v. Sutton, 767 F.2d 726, 728 (10th

Cir. 1985). Freeman supported his motion with communications from Alexica

Hopkins and Vivian Ayala, two individuals who participated in the bank robbery

with him. Freeman characterized these communications as a recantation of the

individuals’ trial testimony against him. When a defendant’s alleged new

evidence consists of recanted trial testimony, “the trial court must first be

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satisfied that the challenged testimony was actually false.” United States v.

Bradshaw, 787 F.2d 1385, 1391 (10th Cir. 1986). Here, the district court

concluded the emails from Ms. Hopkins did not show her trial testimony was

actually false and further concluded the information contained in the emails

would not probably produce an acquittal. As to the letter written by Ms. Ayala,

the district court concluded the letter was not a recantation of Ayala’s trial

testimony, there was nothing in the letter indicating her sworn trial testimony was

actually false, and the information in the letter would not probably produce an

acquittal in a new trial. Accordingly, the court denied Freeman’s motion.

      In the same order, the district court separately addressed the claims raised

in Freeman’s § 2255 motion. In that motion, Freeman alleged his appellate

counsel was ineffective for failing to challenge the application of the career

offender sentencing enhancement. Applying the familiar two-part test set out in

Strickland v. Washington, 466 U.S. 668 (1984), the district court concluded

Freeman could not show he was prejudiced by counsel’s failure to appeal the

enhancement because he was properly sentenced as a career offender. See United

States v. Orange, 447 F.3d 792, 796-97 (10th Cir. 2006) (“Because [a defendant]

must demonstrate both Strickland prongs to establish his claim, a failure to prove

either one is dispositive.” (citation omitted)). The district court then addressed

Freeman’s request for habeas relief based on his contention he is actually

innocent of the bank robbery. Noting that an assertion of actual innocence,

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standing alone, cannot support the granting of a writ of habeas corpus, LeFevers

v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001), the district court

nevertheless also concluded Freeman failed to show he is actually innocent.

      Exercising jurisdiction under 28 U.S.C. § 1291 and finding no reversible

error, this court affirms the denial of Freeman’s Rule 33 motion for substantially

the reasons stated by the district court in its order dated October 9, 2012. As to

the claims raised in the § 2255 motion, Freeman is not entitled to a COA unless

he makes “a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), by demonstrating “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). Although Freeman need not demonstrate his appeal will succeed to be

entitled to a COA, he must “prove something more than the absence of frivolity or

the existence of mere good faith.” Miller-El, 537 U.S. at 338. Because the

district court’s resolution of Freeman’s § 2255 motion is not reasonably subject to

debate and the issues he seeks to raise on appeal are not adequate to deserve

further proceedings, he has not “made a substantial showing of the denial of a




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constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, this court denies

Freeman’s request for a COA and dismisses that portion of this appeal.

Freeman’s request to proceed in forma pauperis on appeal is granted.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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