Opinion
No. 98-40097-01-SAC, No. 01-3229-SAC
August 27, 2002
MEMORANDUM AND ORDER
The defendant has filed a notice of appeal from the court's order denying his motion under 28 U.S.C. § 2255, and now requests that this court issue a certificate of appealability. "If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue." Fed.R.App.P. 22(b)(1). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Defendant may make this showing by demonstrating that the issues he raises are debatable among jurists, that a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When the court denies a § 2255 motion on procedural grounds, a certificate of appealability depends on the applicant's showing "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." Slack, 529 U.S. at 478 (2000) (construing 28 U.S.C. § 2253(c)). If issued, the certificate must "indicate which specific issue or issues satisfy the showing." 28 U.S.C. § 2253(c)(3).
Defendant states two reasons in support of his request for a certificate of appealability. The first is that this court "relied on the Presentence Report to establish the factual basis for the plea, when the Presentence Report hadn't been written and didn't exist at the time that the District Court accepted the plea." (Dk. 82, p. 1-2).
This allegation is inaccurate. The court has reviewed its order regarding defendant's § 2255 motion, and it contains no mention of the presentence report in the court's examination of defendant's substantive challenges to his plea agreement. Instead, the court found that defendant's challenge to issues surrounding his plea was simply an attempt to rehash issues previously and fully addressed in the court's prior order, United States v. Stewart, 51 F. Supp.2d 1147 (D.Kan. 1999), which was affirmed on direct appeal, see 215 F.3d 1338, 2000 WL 717086, (10th Cir. Jun. 02, 2000) (Table). To that extent, the court's ruling on defendant's § 2255 motion was denied on procedural grounds.
Although the presentence report does reflect the factual basis for the plea, this court did not, either in its prior rulings, or in its order on defendant's § 2255 motion, rely on the PSR to establish the factual basis for the plea.
Defendant may instead intend to allege that the court erred in its analysis of federal jurisdiction. Defendant claimed in his § 2255 motion that because the indictment and the factual basis for the plea failed to show that any business was robbed of its assets, the requisite jurisdictional nexus was lacking. This court disagreed.
The Hobbs Act, 18 U.S.C. § 1951(a), among other things, constitutionally conferred federal jurisdiction over persons committing in-state robberies or attempts, or threats of or actual physical violence to any person, when that conduct in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce, or is in furtherance of a plan or purpose to do so. (Citations omitted).
United States v. Eaton, 229 F.3d 1165, 2000 WL 1225550 (10th Cir. Aug 29, 2000) (Table), cert. denied, 531 U.S. 1181 (2001).
This court found that the indictment in this case, which alleged that defendant robbed certain individuals in their capacities as employees and/or customers of certain businesses engaged in interstate commerce, adequately recited the requisite elements of interference with commerce and robbery, and sufficient facts to invoke jurisdiction in this court. See Eaton, at *5, citing United States v. Brown, 164 F.3d 518, 521 (10th Cir. 1998).
To the extent that defendant may be alleging that facts establishing the interstate commerce element of the charge were not adequately proffered by the government during defendant's plea of guilty and did not appear until the PSR, such an argument is procedurally foreclosed by this court's prior rulings regarding the defendant's plea. Defendant's second basis for requesting a certificate of appealability is that "the facts upon which the District Court relied to establish federal jurisdiction in Mr. Stewart's case are of such a nature that a court could have determined that federal jurisdiction did not exist." (Dk. 82, p. 2).
In support of this assertion defendant relies upon cases, noted by this court in its order, from jurisdictions other than the Tenth Circuit regarding the requisite jurisdictional nexus for Hobbs Act violations. Defendant concedes, however, that "Tenth Circuit law may preclude a challenge to federal jurisdiction in Mr. Stewart's case." Id.
In determining the propriety of this court's ruling on the existence of jurisdiction, reasonable jurists would be bound to apply the law of the Tenth Circuit rather than the law found in other jurisdictions, as is this court. See United States v. Spedalieri, 910 F.2d 707, 709 n. 2 (10th Cir. 1990) ("A district court must follow the precedent of this circuit, regardless of its views concerning the advantages of the precedent of our sister circuits.); United States v. Glover, 16 Fed. Appx. 898, 899, 2001 WL 883238 (10th Cir. Aug. 7, 2001) (" Because the issue is settled in this circuit and not disputed by the Supreme Court, we cannot say that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.") Given that fact, the court does not believe its ruling on the jurisdictional issue is debatable.
IT IS THEREFORE ORDERED that the defendant is denied a certificate of appealability.