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    United States v. McIntosh, 10th Cir. (2017)

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    This order denies Rodney McIntosh's request for a certificate of appealability to appeal the denial of his 28 U.S.C. § 2255 motion. McIntosh was convicted of assaulting prison employees while an inmate at Leavenworth federal prison. In his § 2255 motion, McIntosh raised claims relating to the indictment, jury instructions, sentencing, ineffective assistance of counsel, perjured testimony, and prosecutorial misconduct. The district court denied the motion, finding the claims were procedurally barred because they were not raised on direct appeal. The appellate court agrees, finding that McIntosh has not shown cause for the procedural default or that a fundamental miscarriage of justice will occur if the claims are

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    United States v. McIntosh, 10th Cir. (2017)

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    This order denies Rodney McIntosh's request for a certificate of appealability to appeal the denial of his 28 U.S.C. § 2255 motion. McIntosh was convicted of assaulting prison employees while an inmate at Leavenworth federal prison. In his § 2255 motion, McIntosh raised claims relating to the indictment, jury instructions, sentencing, ineffective assistance of counsel, perjured testimony, and prosecutorial misconduct. The district court denied the motion, finding the claims were procedurally barred because they were not raised on direct appeal. The appellate court agrees, finding that McIntosh has not shown cause for the procedural default or that a fundamental miscarriage of justice will occur if the claims are

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    Filed: 2017-01-24 Precedential Status: Non-Precedential Docket: 16-3259

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    This order denies Rodney McIntosh's request for a certificate of appealability to appeal the denial of his 28 U.S.C. § 2255 motion. McIntosh was convicted of assaulting prison employees while an inmate at Leavenworth federal prison. In his § 2255 motion, McIntosh raised claims relating to the indictment, jury instructions, sentencing, ineffective assistance of counsel, perjured testimony, and prosecutorial misconduct. The district court denied the motion, finding the claims were procedurally barred because they were not raised on direct appeal. The appellate court agrees, finding that McIntosh has not shown cause for the procedural default or that a fundamental miscarriage of justice will occur if the claims are

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    United States v. McIntosh, 10th Cir. (2017)

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    This order denies Rodney McIntosh's request for a certificate of appealability to appeal the denial of his 28 U.S.C. § 2255 motion. McIntosh was convicted of assaulting prison employees while an inmate at Leavenworth federal prison. In his § 2255 motion, McIntosh raised claims relating to the indictment, jury instructions, sentencing, ineffective assistance of counsel, perjured testimony, and prosecutorial misconduct. The district court denied the motion, finding the claims were procedurally barred because they were not raised on direct appeal. The appellate court agrees, finding that McIntosh has not shown cause for the procedural default or that a fundamental miscarriage of justice will occur if the claims are

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    of 6

    FILED

    United States Court of Appeals


    UNITED STATES COURT OF APPEALS Tenth Circuit

    TENTH CIRCUIT January 24, 2017

    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,

    Plaintiff - Appellee,
    No. 16-3259
    v. (D.C. Nos. 2:15-CV-02909-KHV and
    2:11-CR-20085-KHV-1)
    RODNEY MCINTOSH, (D. Kan.)

    Defendant - Appellant.

    ORDER DENYING CERTIFICATE OF APPEALABILITY


    AND DISMISSING APPEAL

    Before HARTZ, OBRIEN, and PHILLIPS, Circuit Judges.

    While an inmate at Leavenworth federal prison, Rodney McIntosh hit prison

    employees with urine and other liquid substances and spit on them.1 He was indicted for

    nine counts of assault involving physical contact in violation of 18 U.S.C. 111(a)(1)

    and convicted by a jury of all but one. His conduct earned him a sentence of 144 months

    imprisonment.2 We affirmed his convictions and sentences and the Supreme Court

    denied certiorari review. See United States v. McIntosh, 573 F. Appx 760 (10th Cir.)

    1
    According to the evidence he also threatened to squirt feces on them.
    2
    At the time of sentencing, McIntosh had completed the sentence he had been
    serving when he committed the instant offenses. However, he remained in custody
    pending trial in this case.
    (unpublished), cert. denied, 135 S. Ct. 768 (2014).

    McIntosh filed a 28 U.S.C. 2255 motion and 38 related pleadings raising myriad

    claims. The district judge considered them all and denied the 2255 motion in a detailed

    45-page order. McIntosh seeks to appeal from the denial but needs a certificate of

    appealability (COA) to do so. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (a COA is

    a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus). The

    judge denied a COA so he renews his request here.

    COAs may issue only upon a substantial showing of the denial of a constitutional

    right. 28 U.S.C. 2253(c)(2). McIntosh 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 (2000)

    (quotation marks omitted). When, as here, a district courts ruling rests on procedural

    grounds, it must be upheld unless 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 v. McDaniel, 529 U.S. 473, 484 (2000).

    In his COA application and opening brief, McIntosh makes various arguments

    relating to the indictment, the jury instructions, and his sentence. He also claims the

    witnesses presented perjured testimony, alleges an ex post facto claim, and says the

    government committed prosecutorial misconduct during closing argument. But, as the

    district judge decided, these claims are procedurally barred because he could have but did

    -2-
    not raise them on direct appeal.3 United States v. Allen, 16 F.3d 377, 378 (10th Cir.

    1994) (Section 2255 is not available to test the legality of matters which should have

    been raised on appeal.) (quotation marks omitted). A defendant who fails to present an

    issue on direct appeal is barred from raising the issue in a 2255 motion, unless he can

    show cause for his procedural default and actual prejudice resulting from the alleged

    errors, or can show that a fundamental miscarriage of justice will occur if his claim is not

    addressed. Id.

    Here, McIntosh makes a broad statement blaming his attorney for not raising the

    claims on direct appeal. United States v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004)

    (A meritorious claim of ineffective assistance of counsel constitutes cause and prejudice

    for purposes of surmounting the procedural bar.). But the only specific claim is that

    appellate counsel should have challenged the judges failure to instruct the jury on the

    lesser included offense of misdemeanor simple assault under 18 U.S.C. 111(a)(1).

    We restrict our review to that issue because the others are not sufficiently developed.

    The district judge decided appellate counsel was not ineffective because McIntosh

    was not entitled to such instruction. She concluded misdemeanor simple assault is not

    a lesser included offense of assault involving physical contactthe indicted felony

    offensebecause simple assault requires a willful attempt or a threat to inflict injury

    3
    Before trial McIntosh moved to dismiss the indictment because the prison
    employees discarded their clothing thereby depriving him of evidence. The motion was
    denied. On direct appeal he sought reversal on that issue but otherwise raised no merits
    challenge to his conviction. His appeal was mainly restricted to sentencing matters. The
    sentencing issues mentioned in his 2255 motion are different from those he raised on
    direct appeal.

    -3-
    and assault involving physical contact does not require an intent to cause bodily injury.

    But since her decision in this case, we clarified that assault, i.e., a willful attempt

    to inflict injury upon the person of another, or a threat to inflict injury upon the person of

    another, is an element of every conviction under 111(a) including misdemeanor

    simple assault and felony assault involving physical contact. United States v.

    Wolfname, 835 F.3d 1214, 1216, 1218 (10th Cir. 2016). The only elemental difference

    between the two offenses is the latters requirement of physical contact. Id. at 1218; see

    also United States v. Hathaway, 318 F.3d 1001, 1008-09 (10th Cir. 2003) (in the context

    of 111, the definition of simple assault is assault which does not involve actual

    physical contact; the only difference between a felony offense and a misdemeanor

    offense under 111(a) is the nature of the assault). Thus, for purposes of 111(a)(1),

    simple assault is a lesser included offense of assault involving physical contact. See

    Schmuck v. United States, 489 U.S. 705, 716 (1989) ([An] offense is [a lesser-included

    offense of the charged offense if] the elements of the lesser offense are a subset of the

    elements of the charged offense. Where the lesser offense requires an element not

    required for the greater offense, no [lesser-included-offense] instruction is to be

    given . . . .).

    Despite the intervening clarification of our precedent, the result here was proper.

    McIntosh was not entitled to a simple assault instruction because the element

    differentiating the two offensesphysical contactwas not in dispute at trial. See

    United States v. Moore, 108 F.3d 270, 272 (10th Cir. 1997) (a defendant is entitled to a

    lesser included offense instruction if, among other things, the elements differentiating

    -4-
    the two offenses are in dispute). The governments argument and supporting evidence

    were clear and simple: McIntosh hit prison employees with bodily fluids. McIntosh

    denied doing so; he did not rely on an absence of physical contact. Thus, the evidence at

    trial did not warrant an instruction on simple assaultthe evidence only allowed the

    jury to decide that [McIntosh] either did or did not participate in [assault involving

    physical contact on the prison employees]. See United States v. Espinoza, 277 F. Appx

    789, 792 (10th Cir. 2008) (unpublished). Because a lesser included offense instruction

    was not warranted by the evidence, counsel was not constitutionally ineffective for not

    raising this issue on direct appeal (the only specific claim presented for our

    consideration).4 See Cannon v. Mullin, 383 F.3d 1152, 1177 (10th Cir. 2004) (failure to

    raise meritless claims is not ineffective assistance).

    McIntosh also claims he is actually innocent. [A]ctual innocence, if proved,

    serves as a gateway through which a petitioner may pass whether the impediment is a

    procedural bar . . . or . . . expiration of the statute of limitations. See McQuiggin v.

    Perkins, --- U.S. ---, 133 S. Ct. 1924, 1928 (2013). But actual innocence claims are

    rarely successful.5 Id.; see also Schlup v. Delo, 513 U.S. 298, 324 (1995). As the district

    judge decided, this case is no exception. McIntosh claims the prison employees lied at

    trial and the videotape evidence did not support their allegations. But a viable claim of

    4
    McIntosh has not claimed trial counsel was ineffective for not requesting a
    simple assault instruction.
    5
    That is true, in large measure, because actual innocence is confused with
    technical innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) ([A]ctual
    innocence means factual innocence, not mere legal insufficiency.) (quotation marks
    omitted).

    -5-
    actual innocence requires a petitioner to support his allegations of constitutional error

    with new reliable evidencewhether it be exculpatory scientific evidence, trustworthy

    eyewitness accounts, or critical physical evidencethat was not presented at trial.

    Schlup, 513 U.S. at 324 (emphasis added). McIntosh provides no new evidence.6

    Because the result reached by the district judge is not reasonably debatable, we

    DENY a COA and DISMISS this matter. The district judge allowed McIntosh to

    proceed on appeal without prepayment of fees (in forma pauperis or ifp). But only

    prepayment of fees is excused, not the fees themselves. See 28 U.S.C. 1915(a).

    McIntosh is required to pay all filing and docketing fees ($505.00). Payment must be

    made to the Clerk of the District Court.

    Entered by the Court:

    Terrence L. OBrien
    United States Circuit Judge

    6
    McIntosh claims the judge abused her discretion in denying him discovery to
    prove his actual innocence claim. But he sought only a copy of a prison videotape, which
    was presented at trial. That is not new evidence.

    -6-

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