Webb v. USA

Filing 20

MEMORANDUM AND ORDER denying 7 RENEWED MOTION to Amend/Correct 2 MOTION to Vacate/Set Aside/Correct Sentence. Signed by Chief District Judge Julie A. Robinson on 3/26/2021. (heo)

Case 5:17-cv-04040-JAR-JPO Document 20 Filed 03/26/21 Page 1 of 28

In the United States District Court
for the District of Kansas

In re: CCA Recordings 2255 Litigation,
Petitioners,
v.

Case No. 19-cv-2491-JAR-JPO
(This Document Relates to Case No. 11cr-40078-JAR-1, United States v. Virok
Webb, and Case No. 17-cv-4040-JARJPO, Virok Webb v. United States)

United States of America.
Respondent.

MEMORANDUM AND ORDER
On June 5, 2017, Petitioner Virok Webb filed a pro se Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 809), claiming that both his trial and
appellate counsel provided ineffective assistance.1 After the government responded,2 but before
the Court could rule on his § 2255 motion, Webb moved for leave to amend to add a claim
alleging that the government violated the Sixth Amendment by intentionally intruding upon his
attorney client communications (Doc. 856), which the government opposed. Webb subsequently
renewed the motion at the Court’s request in order to provide additional briefing regarding the
events that that had transpired since the motion was originally filed.3 The government also

1

Unless otherwise specified, citations prefaced with “Doc.” refer to filings and docket entries in the
underlying criminal case, No. 11-40078-JAR-1. Citations prefaced with “CCA Rec. Lit., Doc.” refer to filings and
entries in this consolidated case, No. 19-2491-JAR-JPO. With the exception of United States v. Carter, No. 1620032-JAR, Doc. 758 (D. Kan. Aug. 13, 2019) (“Black Order”), citations to filings in No. 16-20032-JAR are
prefaced with “Black, Doc.”
2

Doc. 820.

3

Webb v. United States, No. 17-4040-JAR-JPO, Doc. 7.

1

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objects to Webb’s renewed motion for leave.4 Webb was granted an extension until March 29,
2021, to file a certification of his § 2255 motions as required by Rule 2(b) of the Rules
Governing Section 2255 Proceedings.5
For the reasons explained in detail below, the Court denies Webb’s motion for leave to
amend to add an intentional-intrusion Sixth Amendment claim and denies the claims raised in
Webb’s § 2255 motion on the merits and without an evidentiary hearing.
I.

Factual and Procedural Background
Underlying Criminal Proceedings
On October 19, 2011, Webb and seven co-defendants were charged with conspiracy to

distribute 280 grams or more of crack cocaine (Count 1) and conspiracy to distribute 5 kilograms
or more of powder cocaine (Count 2).6 Webb, along with co-defendant Marcus Roberson, was
additionally charged with one count of murder to prevent another from providing information
concerning a federal crime to a law enforcement officer of the United States, in violation of 18
U.S.C. § 1512(a)(1)(C).7
On March 7, 2014, the day after co-defendant Roberson was convicted by a jury, Webb
entered a binding guilty plea to one count of conspiracy to distribute 280 grams or more of crack
cocaine.8 In the Plea Agreement, the parties proposed a term of imprisonment between 20 and
30 years as an appropriate sentence; in exchange, the government agreed to dismiss the second
drug conspiracy charge as well as the murder charge, and limited its § 851(a)(1) information to

4

Id., Doc. 9.

5

CCA Rec. Lit., Doc. 782.

6

Doc. 50, Superseding Indictment.

7

Id.

8

Docs. 511, 512.

2

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one prior felony drug conviction, resulting in a mandatory minimum sentence of 20 years rather
than life imprisonment.9 Sentencing was delayed when counsel was granted leave to withdraw10
and newly appointed counsel sought multiple motions to continue.11
Approximately one year later, on February 23, 2015, Webb moved to withdraw his guilty
plea pursuant to Fed. R. Crim. P. 11(d)(2)(B).12 Webb maintained that the government breached
the Plea Agreement by failing to disclose Brady/Giglio13 material, which “created a substantial
change in circumstances.”14 Specifically, Webb argued that through co-defendant Roberson’s
counsel, he discovered evidence that government witness Antonio Cooper was involved in a
homicide investigation in 2001, that this information was exculpatory or impeachment evidence
that the government should have disclosed, and that had he known this information about
Cooper, he would not have entered into the Plea Agreement. Webb further argued that he had a
“strained relationship” with his previous counsel and therefore should be allowed to withdraw
his guilty plea.15
A hearing was held June 15, 2015, on Webb’s motion to withdraw his plea.16 On July 14,
2015, this Court denied Webb’s motion, concluding:
In short, Webb cannot establish that his guilty plea was entered
unknowingly, involuntarily or unintelligently solely because he was
not aware that Antonio Cooper provided a statement in a wholly
unrelated homicide investigation that occurred approximately 13
years before Webb entered his guilty plea. Nor can Webb
9

Doc. 512 at 2–3.

10

Docs. 547, 553.

11

Docs. 572, 584, 668, 682.

12

Doc. 684.

13

Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).

14

Doc. 684 at 1.

15

Id. at 12.

16

Doc. 699.

3

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demonstrate that the information about Cooper would have
“significantly strengthened [his] hand in plea negotiations even if
[this information] had been available to him from the start.” Nor
does Webb explain in any way how knowledge of this information
about Cooper would have played any role in his decision to enter a
guilty plea. . . . Webb had close assistance of counsel throughout
this case; first with Ms. Rokusek, then with Ms. Rokusek and Mr.
Sandage jointly while the case was pending death penalty
qualification. Throughout that period, Webb periodically sought
new counsel other than Ms. Rokusek and Mr. Sandage, only to relent
at every hearing on the motions to withdraw, except the last motion
to withdraw, which he filed after he entered his plea. Webb has
made no showing that he lacked close assistance of counsel. On the
contrary, as the docket sheet in this case reveals, Webb had close
assistance of counsel by one or more attorneys throughout this
proceeding, who engaged in zealous, professional, and experienced
advocacy. . . . Accordingly, Webb has not shown a fair and just
reason for withdrawal of his plea of guilty, and his request is
denied.17
A presentence investigation report (“PSIR”) was prepared using the 2014 Guidelines
Manual.18 The PSIR calculated that Webb’s base offense level for the conspiracy to distribute
crack cocaine would be 34 based on drug quantity of 18,625.72 kilograms of marijuana
(4,609.31 grams of crack cocaine), with a total offense level of 39 after application of both
sentence enhancements and reductions.19 However, the PSIR calculated the base offense level at
43 for the following reasons:
Pursuant to United States Sentencing Guidelines § 2D1.1(d)(1), if a
victim was killed under any circumstances that would constitute
murder under 18 U.S.C. § 1111 had such killing taken place within
the territorial or maritime jurisdiction of the United States, apply §
2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder),
as appropriate, if the resulting offense level is greater than that
determined under this guideline. Pursuant to the 2014 Guidelines
Manual, the defendant’s base offense level is thirty-four. With a
two level adjustment for possession of a dangerous weapon
17

United States v. Webb, No. 11-40078-01, 2015 WL 4275949, at *6–7 (D. Kan. July 14, 2015) (citations

omitted).
18

Doc. 710.

19

Id. ¶ 74.

4

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(2D1.1(b)(1)), another two level adjustment in accordance with
2D1.1(b)(2), a four level adjustment in reference to 3B1.1(a) and a
three level reduction pursuant to 3E1.1(a) and (b), the defendant’s
total offense level under 2D1.1 guideline is 39. As the guideline
pursuant to § 2A1.1, results in a higher guideline, § 2A1.1 will be
the offense level utilized.20
Webb’s total offense level was thus calculated at 40, with a criminal history category of III,
resulting in a guideline range of 360 months to life.21 Pursuant to 21 U.S.C. § 841(b)(1)(A)(iii),
the statutory minimum sentence in this case is 20 years. Webb objected to the cross-reference to
U.S.S.G. § 2A1.1.22 The government responded, and the United States Probation Office
concluded that the cross-reference was warranted.23
Webb again raised the objection to the cross-reference to § 2A1.1, as well as to the drug
quantities attributed to him, in a sentencing memorandum.24 At the sentencing hearing on
August 27, 2015, the government submitted transcripts of the proceedings for co-defendants
Roberson and Kennin Dewberry, over which this Court also presided.25 The government argued
that it had proved by a preponderance of the evidence that Webb was involved in the murder of
Crystal Fisher, and thus this Court could sentence Webb based on the cross-reference to § 2A1.1,
with no reason to engage in calculation of the drug quantities in this case beyond the 280 grams
of crack cocaine that Webb admitted to distributing pursuant to the Plea Agreement.26 Although
the Court agreed with the premise of government’s argument, it proceeded to rule on the
objection to the drug quantities lodged by Webb, finding the amounts set forth in the PSIR were
20

Id.

21

Id. ¶ 133.

22

Id. ¶ 181.

23

Id. ¶¶ 182–83.

24

Doc. 709.

25

Doc. 724 at 5–6, Tr. Sentencing Hr’g, Ex. 2.

26

Id. at 6–13.

5

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correct and accurate beyond a preponderance of the evidence because of the weight of the
evidence the Court heard in the two co-defendants’ trials.27 The Court also overruled Webb’s
objection to the cross-reference to § 2A1.1. The Court detailed the evidence that lead it to
conclude by a compelling preponderance of the evidence that Roberson killed Fisher at the
direction of Webb.28 Pursuant to the binding Plea Agreement, the Court sentenced Webb to a
controlling term of 360 months’ imprisonment.29 Webb filed a notice of appeal the same day.30
Direct Appeal to the Tenth Circuit
On appeal, Webb argued that “(1) the [Court] erred in denying his motion to withdraw his
guilty plea; (2) his counsel was ineffective in the negotiation of the plea; (3) the prosecution
violated Brady/Giglio in failing to disclose the information about Mr. Cooper before the plea
agreement; and (4) [this Court] erred in applying the Sentencing Guidelines.”31 The government
moved to enforce the waiver of appellate rights in the Plea Agreement concerning issues one and
four raised by Webb. Webb’s appellate counsel filed a response to the government’s motion,
stating that there were no non-frivolous grounds upon which to oppose the motion, and further
sought to withdraw under Anders v. California.32 The Tenth Circuit Court of Appeals informed
Webb that counsel filed an Anders brief, and gave him the opportunity to file a document
showing why the court should not enforce the waiver of his right to appeal and to object to the
dismissal of his appeal. Webb submitted a response arguing that the appeal waiver was not

27

Id. at 23–27.

28

Id. at 27–34.

29

Doc. 715.

30

Doc. 713.

31

United States v. Webb, 651 F. App’x 740, 742 (10th Cir. 2016).

32

386 U.S. 738 (1967).

6

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enforceable and that he was prevented from presenting evidence to rebut this Court’s conclusion
that there was sufficient evidence to support the cross-reference to § 2A1.1.
On January 14, 2016, the Tenth Circuit issued an order sustaining the government’s
motion to enforce the appeal waiver with respect to issues one and four, and further dismissing
Webb’s claim of ineffective assistance of counsel. Webb’s appellate counsel then filed an
Anders brief addressing the remaining issue of whether the government violated Webb’s rights
under Brady/Giglio. Webb was given the opportunity to respond, and argued that (1) this Court
abused its discretion in relying upon information from related trials to support the crossreference to § 2A1.1, and further failed to permit Webb an opportunity to rebut such evidence;
and (2) this Court abused its discretion when it denied Webb’s motion to withdraw his plea
because the government failed to disclose exculpatory evidence. The Tenth Circuit ultimately
determined that Webb’s appeal was “wholly frivolous” and denied him relief.33 Webb’s timely
pro se § 2255 motion followed on June 5, 2017.34
Black Investigation and Order
The Court assumes the reader is familiar with its ruling in United States v. Carter (“Black
Order”) that precipitates the matters before the Court.35 That comprehensive opinion was
intended to provide a record for future consideration of the many anticipated motions filed
pursuant to § 2255 and is incorporated by reference herein. The Court does not restate the
underlying facts and conclusions of law in detail but will provide excerpts from the record as

33

Webb, 651 F. App’x at 745.

34

Doc. 809; 28 U.S.C. § 2255(f).

35

No. 16-20032-JAR, Doc. 758 (D. Kan. Aug. 13, 2019). As discussed in that Order, petitioners’ Sixth
Amendment claims stem from recordings of conversations and meetings with counsel while they were detained at
Corrections Corporation of America (“CCA”). That facility has since been renamed CoreCivic. For convenience,
the Court refers to it as CCA in this Order.

7

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needed to frame its discussion of the issues presently before it. The Court appointed the Federal
Public Defender (“FPD”) to represent Webb in his § 2255 proceedings on July 17, 2018.36 The
FPD subsequently moved for leave to amend on Webb’s behalf to allege a Sixth Amendment
claim, seeking relief based on events that came to light in Black, including the existence of audio
recordings of telephone conversations and soundless video recordings of meetings between
attorneys and their clients who were detained at CCA.37
The Black investigation revealed in relevant part that CCA recorded some of the outgoing
phone calls between detainees and their counsel using equipment provided by Securus
Technologies, Inc. (“Securus”).38 The Court discussed in detail the flaws in CCA’s privatization
procedures and noted that as a result of these flaws, “calls between defense attorneys and clients
at CCA were routinely recorded even when the attorney properly requested privatization.”39 The
Court further detailed how prosecutors at the Kansas City Office of the United States Attorney
(“USAO”) not only knew that CCA recorded such calls, but that they could obtain the resulting
recordings by making “a general request for detainee calls.”40 The Court found that the
government routinely made requests for detainee calls—without taking any precautionary
measures to avoid protected communications—and routinely received recordings of attorneyclient calls as a result.41

36

D. Kan. Standing Order 18-3 (July 17, 2018), http:/www.ksd.uscourts.gov/wp-content/uploads/2018/07/
Standing-Order-18-3-Appointing-FPD.pdf.
37

Doc. 856.

38

Black Order at 5, 80, 85.

39

Id. at 80–88.

40

Id. at 106.

41

Id. at 101–06.

8

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On August 13, 2019, this Court issued the Black Order, addressing in relevant part the
applicable standard for Webb’s Sixth Amendment claim in the Tenth Circuit.42 Under Shillinger
v. Haworth, a per se Sixth Amendment violation occurs when: (1) there is a protected attorneyclient communication; (2) the government purposefully intruded into the attorney-client
relationship; (3) the government becomes “privy to” the attorney-client communication because
of its intrusion; and (4) the intrusion was not justified by any legitimate law enforcement
interest.43 Once those elements are established, prejudice is presumed.44
The Court further held that a finding of purposeful intrusion into the attorney-client
relationship necessarily requires a threshold showing that the recordings were protected attorneyclient communications.45 While recognizing that the attorney-client privilege is not a right
guaranteed by the Sixth Amendment, the Court applied principles relating to the privilege as a
framework for this showing that the recordings between petitioners and counsel were protected
communications under the Sixth Amendment. With respect to the audio recordings, the Court
determined that the following threshold showings must be made after review and verification by
the FPD: (1) the telephone recording exists; (2) a given call contains protected attorney-client
communication, i.e., communication that relates to legal advice or strategy sought by the client;
and (3) an affidavit from defense counsel confirming that the nature and purpose of the call(s)
were within the ambit of protected communication, including but not limited to defense
preparation, plea negotiations, or review of discovery.46

42

Id. at 162.

43

Id. (citing Shillinger, 70 F.3d 1132, 1142 (10th Cir. 1995)).

44

Id.

45

Id. at 163.

46

Id. at 166.

9

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Finally, the Black Order reassigned all Black-related § 2255 motions pending before
other judges in the District to the undersigned for determination of the merits of petitioners’
Sixth Amendment claims and for consolidated discovery.47 The Court assumes the reader is
familiar with the proceedings in the consolidated master case that precipitate the matter before
the Court, and does not restate the underlying facts in detail but will provide excerpts from the
record as needed to frame its discussion of the issues presently before it.
In his proposed amended claim, Webb alleges that in May 2016, after he pleaded guilty
and was sentenced, the government obtained recordings of four phone calls he made to his trial
attorney, Jackie Rokusek, while he was detained at CCA. These calls were made between
September 16, 2011 and March 26, 2014.48 It is undisputed that these calls were obtained by the
government as part of the Black investigation and produced to the Court in response to an August
2016 claw-back order.49 The government confirmed its possession of the calls in a status report
to the Court and copies of those recordings were provided to the FPD on April 29, 2020.50 Webb
does not allege that the individual prosecutors in his underlying criminal case, AUSA Tony
Mattivi or AUSA Jared Maag, obtained his attorney-client calls during the pendency of his
criminal case. Instead, he alleges that his calls were obtained in the Black case and investigation
while he was in BOP custody serving his sentence and while his case was pending on appeal, and
suggests that Rokusek was the target of the USAO.51 Webb asserts that his amended claim

47

CCA Lit., Doc. 1.

48

See id., Doc. 205-2 at 227–29.

49

Webb, No. 17-4040-JAR-JPO, Doc. 12 at 2.

50

Id.

51

Id. at 3.

10

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should be evaluated within the framework of the Black Order and investigation, not the
underlying Topeka prosecution.
II.

Discussion
The Court addresses Webb’s motion for leave to amend before reaching the merits of his

§ 2255 motion.
A.

Motion for Leave to Amend

Webb seeks to add a claim that the government violated the Sixth Amendment by
intentionally intruding into his attorney client relationship by becoming privy to audio recordings
of his phone calls with counsel while he was detained at CCA. The government opposes Webb’s
motion and argues that it is both untimely and lacks substantive merit.
Fed. R. Civ. P. 15(a)(2) governs a motion to amend a § 2255 motion if it is made before
the one-year limitations period for filing a § 2255 petition has expired.52 Under Rule 15(a)(2), “a
movant may file an amended § 2255 motion at any time during post-conviction proceedings with
leave of court.”53 An amendment only relates back to the original pleading, however, when “the
amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out—
or attempted to be set out—in the original pleading.”54 Without a claim relating back, a motion
under § 2255 must be brought within a year from “the date on which the judgment of conviction
becomes final.”55
For untimely § 2255 amendments made outside of the one-year window, a claim will
only relate back if, “by way of additional facts, [the amendment] clarifies or amplifies a claim or

52

United States v. Ohiri, 133 F. App’x 555, 559 (10th Cir. 2005).

53

United States v. Roe, 913 F.3d 1285, 1296 (10th Cir. 2019) (citing Fed. R. Civ. P. 15(a)(2)).

54

Fed. R. Civ. P. 15(c)(1)(B).

55

28 U.S.C. § 2255(f)(1).

11

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theory in the original motion.”56 However, if the “proposed amendment . . . seek[s] to add a new
claim or to insert a new theory into the case,” it does not relate back to the original motion.57
“[T]he operative question for” relation-back “is whether ‘the original and amended [motions]
state claims that are tied to a common core of operative facts.’”58 “The answer to that question
will often turn on whether the newly asserted claim would have had to be pleaded as a discrete
claim under Section 2255 Rule 2(b) if it was set out in the original § 2255 motion.”59
Here, Webb’s judgment of conviction became final for purposes of § 2255(f)(1) on
August 31, 2016.60 To fall within the one-year window, any § 2255 motion or amendment must
have been filed by August 31, 2017. Although Webb’s pro se § 2255 motion was timely filed,
his July 9, 2019 motion for leave to amend was filed outside of the one-year window. Thus, to
relate back to his original § 2255 motion, the amendment must not “add a new claim or [ ] insert
a new theory into the case.”61
Webb seeks to add a new intentional-intrusion Sixth Amendment claim. His original
§ 2255 motion is based solely on claims of ineffective assistance of trial and appellate counsel.
Thus, Webb would have been required to plead this claim separately from his original claims,
and the facts necessary to prove the amended claim are separate from those facts necessary to
prove the actual ineffective assistance of counsel claims. The amended claim is brought under

56

Roe, 913 F.3d at 1296 (quoting United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000)).

57

Id.

58

Id. at 1298 (quoting United States v. Trent, 884 F.3d 985, 992–93 (10th Cir. 2018)).

59

Id.

60

See United States v. Prows, 448 F.3d 1223, 1227 (10th Cir. 2006) (“In the context of the one-year
limitation period for filing a § 2255 motion, a criminal conviction becomes final when the Supreme Court affirms it
on direct review, denies certiorari, or (in the absence of a certiorari petition) the time for filing a certiorari petition
expires.”). Webb filed a direct appeal and the Tenth Circuit affirmed his conviction on June 2, 2016. United States
v. Webb, 651 F. App’x , 741 (2016). The time for filing a certiorari petition expired 90 days after this date, on
August 31, 2016, and Webb’s judgment of conviction became final on that date. See Sup. Ct. R. 13(1).
61

Roe, 913 F.3d at 1296 (quoting Espinoza-Saenz, 235 F.3d at 505).

12

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the Tenth Circuit decision in Shillinger v. Haworth, and requires Webb to establish the following
prima facie case: (1) there is a protected attorney-client communication; (2) the government
purposefully intruded into the attorney-client relationship; (3) the government became “privy to”
the attorney-client communication because of its intrusion; and (4) the intrusion was not justified
by any legitimate law enforcement interest.62 By contrast, the ineffective assistance of counsel
claims are evaluated under the familiar two-prong analysis in Strickland v. Washington,63 rely
entirely upon the actions or inactions of Webb’s trial and appellate counsel, and are unrelated to
the conduct of the government at issue in his motion to amend. Because Webb’s amendment
does not relate back to his original motion and falls outside the one-year limitations period, his
motion for leave to amend is denied.
In so ruling, the Court notes two additional grounds justifying denial of Webb’s request
for leave to amend. First, Webb cites to the scheduling order entered in the consolidated CCA
§ 2255 Litigation matter setting a deadline of February 28, 2020 for petitioners to amend their
motions.64 On February 28, 2020, the FPD filed three “Supplements” to numerous petitioners’
§ 2255 motions.65 These supplements did not seek leave to add new claims but were filed on
behalf of petitioners with pending § 2255 motions that had previously alleged intentionalintrusion claims filed before this Court issued the Black Order on August 13, 2019. The
supplements addressed those findings of fact and conclusions of law relevant to petitioners’
claims,66 or added audio recordings to their previous claims involving video recordings.67 By

62

Black Order at 162 (citing Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995)).

63

466 U.S. 668 (1984).

64

CCA Rec. Lit., Doc. 83.

65

Id., Docs. 87, 88, 89.

66

Id., Doc. 87.

67

Id., Docs. 88, 89.

13

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contrast, prior to entry of the scheduling order, the FPD moved for leave to amend several pro se
motions to add new Sixth Amendment intentional-intrusion claims, including Webb’s. Two
motions, which were unopposed, were filed within the one-year window to do so under
§ 2255(f)(1), and thus were not required to relate back to petitioners’ original claims.68
Second, Webb’s Sixth Amendment intentional-intrusion claim is futile. It is well-settled
that in ruling on a motion for leave to amend, courts are instructed to “freely give leave when
justice so requires,” and to deny leave to amend only when an apparent reason, “such as . . .
futility of amendment,” exists.69 Thus, “a court properly may deny a motion for leave to amend
as futile when the proposed amended complaint would be subject to dismissal for any reason.”70
As previously discussed, Webb specifically alleges the Sixth Amendment violation occurred
after he was sentenced on August 27, 2015, when SAUSA Erin Tomasic subpoenaed his calls
from CCA as part of the Black case in May 2016. After the government was permitted to
supplement the record, the FPD confirmed that it revisited the relevant Securus records and,
based on the available evidence, Webb cannot prove that anyone actually accessed the relevant
audio recordings until after he was sentenced, leaving no redressable injury.71
Article III of the Constitution gives federal courts the power to exercise jurisdiction only
over “Cases” and “Controversies.” Federal courts must have a statutory or constitutional basis to

68

See United States v. Morris, No. 16-20022-JAR-03, Doc. 150 (D. Kan. Oct. 16, 2018); United States v.
Jones, No. 15-20091-JAR-01, Doc. 125 (D. Kan. Oct. 16, 2018).
69

Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S. 178 (1962); Cohen v. Longshore, 621 F.3d 1311,
1313 (10th Cir. 2010).
70

Bradshaw v. Lappin, 484 F. App’x 217, 225 (10th Cir. 2012) (citation omitted).

71

See Webb, No. 17-4040-JAR-JPO, Doc. 19; CCA Rec. Lit., Doc. 793 at 8–9. The FPD continues to
maintain that the earliest date an audio recording could potentially be accessed is the date the recording was created
but, after reviewing the evidence, agrees that Webb cannot prove that his recordings were actually accessed on the
Securus Call Platform before he was sentenced. Id. at 8 n.16.

14

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exercise jurisdiction.72 And, without jurisdiction, a court must dismiss the case.73 Courts thus
must determine, either sua sponte or upon a challenge by a party “at any stage in the litigation,”
whether subject matter jurisdiction exists.74 Article III’s case-or-controversy requirement applies
at all stages of litigation.75 There are three basic elements of standing: (1) an injury, (2) a causal
connection between that injury and conduct complained of in the motion, and (3) the likelihood
that court action could redress that injury.76 To demonstrate causation, a party must show that
their alleged injury is “fairly traceable” to the complained of conduct.77 “Article III . . .
require[s] proof of a substantial likelihood that the defendant’s conduct caused plaintiff’s injury
in fact.”78 “When ‘[s]peculative inferences are necessary to connect [a plaintiff's] injury to the
challenged action,’ this burden has not been met.”79
As this Court discussed in its January 18, 2021 Order in the consolidated § 2255
proceedings, when the alleged intrusion occurs after the petitioner was sentenced, “the intrusion
cannot be tied to any claimed unfairness or impropriety in the conviction, plea, or sentencing
process. Without such a nexus, these petitioners cannot proceed with claims challenging either
their conviction or sentences.”80 Falling squarely into this category, the Court concludes that
Webb lacks standing to challenge his conviction and sentence and any Sixth Amendment
72

Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).

73

Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
74
Arbaugh, 546 U.S. at 506 (explaining that challenges to subject matter jurisdiction “may be raised . . . at
any stage in the litigation, even after trial and the entry of judgment.”).
75

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990).

76

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 2021 WL 850106, at *2 (2021).

77
Habecker v. Town of Estes Park, 518 F.3d 1217, 1225 (10th Cir. 2008) (citing Lujan v. Def. of Wildlife,
504 U.S. 555, 560 (1992)).
78

Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005).

79

Id. at 1157 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976)).

80

See CCA Rec. Lit., Doc. 730 at 53.

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intentional-intrusion claim would be dismissed for lack of jurisdiction. This conclusion does not
change because Webb’s appeal was pending in May 2016, as by that time, the Tenth Circuit had
granted in part the government’s motion to enforce the plea waiver and on June 2, 2016,
affirmed the remaining claims as “wholly frivolous” after appellate counsel filed an Anders
brief.81 Thus, Webb’s amended claim would be subject to dismissal for lack of standing to
pursue § 2255 relief, and is futile. For all these reasons, the Court denies Webb leave to amend
his § 2255 motion.
B.

Ineffective Assistance of Counsel Claims

Webb raises four distinct claims that trial and appellate counsel were ineffective: (1)
appellate counsel was ineffective for failing to challenge the cross-reference under U.S.S.G.
§ 2A1.1; (2) appellate counsel was ineffective for failing to challenge on appeal the amount of
cocaine attributable to Webb; (3) trial counsel was ineffective for persuading Webb to enter a
guilty plea to an offense under 21 U.S.C. § 841(b)(1)(A)(iii), which had a threshold weight of
280 grams or more of cocaine base; and (4) appellate counsel was ineffective for failing to argue
that the cross-reference to § 2A1.1 violated the Supreme Court’s decision in Alleyne v. United
States.82
1.

Standard

Section 2255 entitles a federal prisoner to relief if the court finds that “the judgment was
rendered without jurisdiction, or that the sentence imposed was not authorized by law or [is]
otherwise open to collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”83
81

United States v. Webb, 651 F. App’x 740, 745 (10th Cir. 2016).

82

570 U.S. 99 (2013).

83

28 U.S.C. § 2255(b).

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The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.”84 A § 2255
petitioner must allege facts that, if proven, would warrant relief from his conviction or
sentence.85 An evidentiary hearing is not necessary where the factual allegations are
contradicted by the record, inherently incredible, or when they are conclusions rather than
statements of fact.86
The Sixth Amendment guarantees that “[i]n all criminal prosecution, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.”87 A successful claim of
ineffective assistance of counsel must meet the two-pronged test set forth in Strickland v.
Washington.88 First, a defendant must show that his counsel’s performance was deficient in that
it “fell below an objective standard of reasonableness.”89 To meet this first prong, a defendant
must demonstrate that the omissions of his counsel fell “outside the wide range of professionally
competent assistance.”90 This standard is “highly demanding.”91 Strategic or tactical decisions
on the part of counsel are presumed correct, unless they were “completely unreasonable, not
merely wrong, so that [they] bear no relationship to a possible defense strategy.”92 In all events,
judicial scrutiny of the adequacy of attorney performance must be strongly deferential: “[A]
84

United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995) (quoting 28 U.S.C. § 2255(b)).

85

In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009).

86
See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995) (“[T]he allegations must be specific and
particularized, not general or conclusory”); United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (rejecting
ineffective assistance of counsel claims that are merely conclusory in nature and without supporting factual
averments).
87

U.S. Const. amend. VI; see Kansas v. Ventris, 556 U.S. 586 (2009).

88

466 U.S. 668 (1984).

89

Id. at 688.

90

Id. at 690.

91

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).

92

Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quotation and citations omitted).

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court must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”93 Moreover, the reasonableness of the challenged conduct
must be evaluated from counsel’s perspective at the time of the alleged error, and “every effort
should be made to ‘eliminate the distorting effects of hindsight.’”94
Second, a defendant must also show that his counsel’s deficient performance actually
prejudiced his defense.95 To prevail on this prong, a defendant “must show there is a reasonable
probability that, but for his counsel’s unprofessional errors, the result of the proceeding would
have been different.”96 A “reasonable probability” is a “probability sufficient to undermine
confidence in the outcome.”97 This, in turn, requires the court to focus on “the question whether
counsel’s deficient performance render[ed] the result of the trial unreliable or the proceeding
fundamentally unfair.”98
A defendant is entitled to the effective assistance of counsel during plea negotiations.99
“The performance prong of Strickland requires a defendant to show that counsel’s representation
fell below an objective standard of reasonableness.”100 “To show prejudice in the guilty plea
context, the defendant must establish that ‘there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and [would have] insisted on going to trial.’”101

93

Strickland, 466 U.S. at 687.

94

Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996) (quoting Strickland, 466 U.S. at 689).

95

Strickland, 466 U.S. at 687.

96

Id. at 694.

97

Id.

98

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

99

Lafler v. Cooper, 566 U.S. 156, 162–63 (2012).

100

Id. at 163 (internal quotation marks omitted).

101

Heard v. Addison, 728 F.3d 1170, 1176 (10th Cir. 2013) (quoting Hill v. Lockhart, 474 U.S. 52, 58–59

(1985)).

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Claims of ineffective assistance of appellate counsel are also governed by Strickland’s
standards. To prove that appellate counsel was ineffective under Strickland, a defendant must
show “(1) constitutionally deficient performance, by demonstrating that his appellate counsel
was objectively unreasonable, and (2) resulting prejudice, by demonstrating that but for
counsel’s unprofessional error(s), the result of . . . appeal . . . would have been different.”102
Although “[a] claim of appellate ineffectiveness can be based on counsel’s failure to raise a
particular issue on appeal, . . . counsel need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success on
appeal.”103 The strength of the omitted issue guides the court’s assessment of the ineffectiveness
claim. “If the omitted issue is so plainly meritorious that it would have been unreasonable to
winnow it out even from an otherwise strong appeal, its omission may directly establish deficient
performance.”104 “[I]f the omitted issue has merit but is not so compelling, the case for deficient
performance is more complicated, requiring an assessment of the issue relative to the rest of the
appeal, and deferential consideration must be given to any professional judgment involved in its
omission.”105 And “if the issue is meritless, its omission will not constitute deficient
performance.”106 As the Tenth Circuit has explained, the omission of a “dead-bang winner” by
counsel is deficient performance that may result in prejudice; a dead-bang-winner is “an issue

102

United States v. Turrentine, 638 F. App’x 704, 705 (10th Cir. 2016) (quoting Cargle v. Mullin, 317 F.3d
1196, 1202 (10th Cir. 2003)).
103

Id.

104

Id.

105

Id.

106

Id.

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which was obvious from the trial record and one which would have resulted in a reversal on
appeal.”107
In all events, a defendant must demonstrate both Strickland prongs to establish a claim of
ineffective assistance of counsel, and a failure to prove either one is dispositive.108 “The
performance component need not be addressed first. ‘If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be
followed.’”109
2.

Application
a.

Cross-reference to U.S.S.G. § 2A1.1

On appeal, counsel for Webb did not contest the government’s motion to enforce the Plea
Agreement. Webb then filed a pro se response with the Tenth Circuit arguing that this Court
failed to give him an opportunity to contest the cross-reference to § 2A1.1 in calculating his base
offense level. As appellate counsel believed, and the Tenth Circuit affirmed, however, Webb
waived his right to appeal any sentencing issues.110 Accordingly, appellate counsel cannot be
considered ineffective under Strickland for failing to raise issues that Webb himself agreed to
waive on appeal as set forth in the binding Plea Agreement.

107

United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (quoting United States v. Cook, 45 F.3d
388, 394 (10th Cir. 1995)).
108

Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000).

109

Id. (quoting Strickland v. Washington, 466 U.S. 668, 697 (1984)); see also Romano v. Gibson, 239 F.3d
1156, 1181 (10th Cir. 2001) (“This court can affirm the denial of habeas relief on whichever Strickland prong is the
easier to resolve.”).
110

See Doc. 820, Attach. G (holding Webb “waived his right to raise an issue on appeal challenging the
district court’s denial of his motion to withdraw or its reliance on the government’s evidence of his complicity in
Crystal Fisher’s murder and its reference to the sentencing guideline for murder in determining what sentence to
impose within the range stipulated in the plea agreement”).

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Likewise, Webb’s argument that appellate counsel was ineffective for filing a frivolous
appeal is without merit. As the government argues, Webb’s claim is akin to challenging his
counsel’s decision to file an Anders brief in this case, which fails given that “[t]he submission of
an Anders brief does not meet the Strickland standard for ineffective assistance if the request to
withdraw is granted by the court.”111 Instead, Webb would only have a valid challenge to
appellate counsel’s representation on these grounds under circumstances where counsel sought to
withdraw without filing an Anders brief.112 In this case, counsel satisfied the requirements of
Anders by filing the proper submissions and simultaneously seeking to withdraw. The Tenth
Circuit granted counsel’s request and found Webb’s appeal to be “wholly frivolous.”113
Accordingly, appellate counsel’s representation cannot be deemed ineffective.
Nor can Webb satisfy the prejudice prong under Strickland, as the application of § 2A1.1
was appropriate in this case. This Court applied a preponderance of the evidence standard in
determining whether the government met its burden of establishing that Webb was involved in
killing Fisher under circumstances that would constitute first degree murder under 18 U.S.C.
§ 1111.114 In making this determination, the Court relied on the trial transcripts and testimony
presented in the trials of co-defendants Dewberry and Roberson, cases over which this Court also

111

Cobb v. United States, 496 F. Supp. 2d 215, 219 (N.D.N.Y. 2006); United States v. Main, No. 98-CR62-2, 2008 WL 4559837, at *4 (D. Vt. Oct. 9, 2008) (in granting appellate counsel’s motion to be relieved following
submission of Anders brief, Court of Appeals inherently affirmed that counsel had met the proper standards of
reasonableness). See also United States v. Nash, 229 F. App’x 700, 702 (10th Cir. 2007) (“The mere filing of an
Anders Brief cannot form the basis for a claim of ineffective assistance of counsel.”) (quoting United States v.
Martinez-Lomeli, 86 F.3d 1167 (10th Cir. 1996))).
112

See Penson v. Ohio, 488 U.S. 75, 86–89 (1988).

113

United States v. Webb, 651 F. App’x 740, 744–45 (10th Cir. 2016).

114
See United States v. Ramos, 695 F.3d 1035, 1039 (10th Cir. 2012) (citation omitted) (explaining the
government bears the burden of proving sentencing enhancements by a preponderance of the evidence).

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presided. The evidence established that Webb orchestrated Fisher’s murder, as summarized in
paragraph 58 of the PSIR:
The investigation into Fisher’s murder demonstrated Webb and
Roberson orchestrated Fisher’s murder on the belief Fisher had
informed law enforcement about the activities of Webb’s drug
trafficking organization.
The investigation further revealed
Roberson murdered Fisher at Webb’s direction. Both Webb and
Roberson had prior federal and state narcotics convictions and thus
there was a reasonable likelihood had Fisher been able to further
communicate with law enforcement officers, at least one relevant
communication would have been made to a federal law enforcement
officer. Webb and Roberson, however, prevented Fisher’s
communication to a federal officer after learning of her
communication with state law enforcement officials earlier on
March 2nd, and as a result of that meeting arranged for and carried
out Fisher’s murder.115
Thus, direct application of § 2A1.1 was appropriate and appellate counsel was not ineffective by
concluding that a challenge to the cross-reference on appeal was “wholly frivolous.”
Webb’s attempt to employ Amendment 790 to support his claim is also misplaced. On
November 1, 2015, U.S.S.G. § 1B1.2(a)(1)(B) went into effect, redefining “relevant conduct” in
the case of jointly undertaken activity to include: “all acts and omissions of others that were—(i)
within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal
activity, and (iii) reasonably foreseeable in connection with that criminal activity.”116 Webb
contends that this Court failed to determine the first prong of the clarified relevant conduct
Guideline. As previously discussed, the evidence established Webb’s direct and leading role
within the scope of the jointly undertaken criminal activity; that his actions and leadership were
in furtherance of the criminal activity, to include the murder of Fisher; and that all acts by others

115

Doc. 710 at 14.

116

U.S.S.G. § 1B1.3(a)(1)(B) (2015); U.S.S.G. Suppl. to App. C, Amend. 790.

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within the conspiracy were reasonably foreseeable to Webb in connection with that criminal
activity.
Because Webb cannot establish prejudice under the Strickland standard, his claim that
appellate counsel was ineffective for failing to raise this particular issue on appeal is denied.
b.

Calculation of Drugs Attributable to Webb

Webb next argues that appellate counsel was ineffective for failing to challenge on appeal
the amount of cocaine attributable to Webb. In this case, the PSIR attributed to Webb a
total/converted amount of 18,625.72 kilograms of marijuana.117 The calculation of controlled
substances attributable to Webb did not ultimately control the base offense level, however, which
was calculated upon cross-reference to U.S.S.G. § 2A1.1.118 Accordingly, this calculation had
no bearing on the base offense level. Moreover, as previously discussed, Webb waived his right
to appeal any sentence calculation in this case. Thus, counsel cannot be considered ineffective
for failing to raise this issue, and this claim is denied.
c.

Fair Sentencing Act

Webb claims that trial counsel was ineffective for persuading him to enter a guilty plea to
an offense under 21 U.S.C. § 841(b)(1)(A)(iii), which had a threshold weight of 280 grams or
more of cocaine base. Webb argues that because the conspiratorial acts relative to his leadership
in the drug trafficking organization occurred before August 3, 2010, the date the Fair Sentencing
Act became effective, counsel should not have advised him to agree to an amount of 280 grams,
when the prior threshold weight was 50 grams. Webb’s arguments are without merit.

117

Doc. 710 ¶ 43.

118

Id. ¶ 75.

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Webb was charged with conspiring to distribute 280 grams or more of crack cocaine,
beginning on or before November 7, 2008, and continuing until on or about April 1, 2011.119
The superseding indictment was filed in August 2011, after the Fair Sentencing Act was
implemented. The Act was intended to address the crack-to-powder mandatory minimum ratio
of 100-to-1, as described by the Supreme Court in Dorsey v. United States:
In 2010, Congress accepted the Commission’s recommendations,
see 2002 Report 104; 2007 Report 8–9, and n.26, and enacted the
Fair Sentencing Act into law. The Act increased the drug amounts
triggering mandatory minimums for crack trafficking offenses from
5 grams to 28 grams in respect to the 5-year minimum and from 50
grams to 280 grams in respect to the 10-year minimum (while
leaving powder at 500 grams and 5,000 grams, respectively). § 2(a),
124 Stat. 2372. The change had the effect of lowering the 100-to-1
crack-to-powder ratio to 18-to-1. (The Act also eliminated the 5year mandatory minimum for simple possession of crack. § 3, 124
Stat. 2372.)120
The Court went on to hold, “Congress intended the Fair Sentencing Act’s more lenient
penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are
sentenced after that date.”121 However, Webb is not entirely a pre-Act offender, as the
conspiracy charged in Count One of the Superseding Indictment covers a period to include eight
months after the enactment of the Act. Because his crimes continued after the Act, Webb cannot
avail himself of its provisions and likewise, Dorsey is inapplicable.
Webb further argues that counsel was ineffective for advising him to stipulate to the
threshold quantity of 280 grams of crack in the Plea Agreement, which raised the mandatoryminimum sentence to ten years, which was doubled pursuant to § 851. Webb argues, in effect,
that the government had no evidence to prove Webb conspired with others to distribute that
119

Doc. 50.

120

567 U.S. 260, 269 (2012).

121

Id. at 273.

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amount. This argument is without merit. As set forth in the PSIR, Webb was responsible for
approximately 4,609.31 grams of crack cocaine, well in excess of the threshold amount under
§ 841(b)(1)(A)(iii).122 That Webb stipulated with the government that he was, at the minimum,
culpable for 280 grams of crack cocaine does not establish that trial counsel was ineffective in
light of the evidence that Webb distributed nearly fifteen times that amount.123 Indeed, the
amount of crack cocaine actually attributable to Webb resulted in a putative sentence of life
without parole, and the binding plea deal exposing him to no more than 30 years belies any claim
of prejudice under Strickland. Moreover, as noted in his second claim, Webb’s base offense
level was calculated upon the cross-reference to U.S.S.G. § 2A1.1, and not the calculation of
controlled substances attributable to him. This claim is denied.
d.

Alleyne Challenge

Finally, Webb argues that appellate counsel was ineffective for failing to argue that the
cross-reference to § 2A1.1 violated the Supreme Court’s decision in Alleyne v. United States,
where it held that any fact that increases the mandatory minimum sentence for a crime is an
“element” of the crime and not a “sentencing factor,” and thus must be submitted to a jury for
consideration.124
Guideline § 2D1.1 sets forth the base offense level for possessing with intent to distribute
cocaine and the specific offense characteristics that increase or decrease the base offense level.
Section 2D1.1(d) is entitled “Cross References,” and instructs the district court as follows:
If a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111 had such killing taken place within
122

Doc. 710 ¶ 43.

123

See United States v. Yancy, 725 F.3d 596, 601–02 (6th Cir. 2013) (explaining that Alleyne does not alter
the rule that, for statutory enhancements, the defendant’s guilty plea and admissions during plea colloquy relieve the
government of the burden of proving facts to a jury beyond a reasonable doubt).
124

570 U.S. 99, 103 (2013).

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the territorial or maritime jurisdiction of the United States, apply §
2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder),
as appropriate, if the resulting offense level is greater than that
determined under this guideline.
18 U.S.C. § 1111(a) defines murder as “the unlawful killing of a human being with malice
aforethought.” The statute provides that first-degree murder includes “[e]very murder
perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and
premeditated killing.”125
Webb argues that application of the § 2A1.1 first-degree murder cross-reference violated
his Fifth Amendment right to due process and his Sixth Amendment right to trial by jury. He
contends that this Court’s application of the § 2A1.1 cross-reference sentenced him for a murder
he denies being involved in and that the Court erroneously applied a preponderance of the
evidence standard instead of proof beyond a reasonable doubt as required under Alleyne, and that
counsel’s failure to argue and preserve this objection constitutes ineffective assistance.
Although the Tenth Circuit has not addressed this issue, other courts have determined that
Alleyne does not prevent application of § 2A1.1. In United States v. Davis, the Eighth Circuit
Court of Appeals held:
Application of the § 2A1.1 cross-reference neither increases the
penalty beyond the statutory maximum, see Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), nor
increases the mandatory minimum, see Alleyne, 133 S. Ct. at 2155.
Regarding whether a jury is required, application of a statutory
maximum or minimum [is] to be distinguished from “factfinding
used to guide judicial discretion in selecting punishment within
limits fixed by law. While such findings of fact may lead judges to
select sentences that are more severe than ones they would have
selected without those facts, the Sixth Amendment does not govern
the element of sentencing.”126
125

18 U.S.C. § 1111(a).

126

753 F.3d 1361, 1362 (8th Cir. 2014) (per curiam); see also United States v. Jackson, 782 F.3d 1006,
1013 (8th Cir. 2015) (holding Davis foreclosed defendant’s Alleyne argument with respect to application of the §
2A1.1 cross-reference); United States v. Jenkins, 792 F.3d 931, 935–36 (8th Cir. 2015) (“[Defendant] is incorrect

26

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Similarly, in United States v. Grissett, the Fourth Circuit held that because application of
§ 2D1.1(d)(1) did not increase the defendant’s mandatory minimum sentence, his reliance upon
Alleyne was misplaced.127 The Court finds the reasoning of these cases persuasive, and adopts
that reasoning here. Accordingly, Webb cannot sustain his claim that appellate counsel was
ineffective for failing to raise an argument that falls short of a “dead-bang winner.”128
Nor does Webb’s reliance on the Supreme Court’s decision in Mathis v. United States129
afford him any relief. In Mathis, the Court dealt with the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (“ACCA”), and held that, for the purpose of determining whether a prior offense
qualifies as a predicate offense under the ACCA, sentencing courts must employ an approach
that looks to the elements of the offense and not the means of its commission.130 To the extent
Webb suggests Mathis has some relevance to 21 U.S.C. § 841 because of the potential crossreference provisions of § 2D1.1(d)(1), his argument is misplaced. Webb attempts to extend the
holding in Mathis to argue that facts used to enhance a sentence, or to provide a reason to crossreference a particular guideline, are elements of the offense. Mathis provides no support for this
claim, and Webb’s claim on this ground is rejected.

that Alleyne, Apprendi, and Blakely require the jury to find evidence supporting the sentencing enhancements
beyond a reasonable doubt. Those cases require a jury to find beyond a reasonable doubt any fact that increases the
penalty beyond the prescribed statutory maximum, or increases the mandatory minimum.”).
127

606 F. App’x 717, 720 (4th Cir. 2015).

128

United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009).

129

136 S. Ct. 2243 (2016).

130

Id. at 2257.

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III.

Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Proceedings states that the Court must

issue or deny a certificate of appealability [“COA”] when it enters a final order adverse to the
applicant. “A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”131 If the district court denies a habeas
petition on procedural grounds without reaching the merits of petitioner’s underlying
constitutional claim, “the prisoner must show both (1) ‘that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling’ and (2) ‘that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right.’”132 For the reasons stated above, the Court finds that Webb has not
satisfied this standard and, therefore, denies a certificate of appealability as to its ruling denying
leave to amend his motion as well as on the merits of his § 2255 motion.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner Virok Webb’s
Motion for Leave to Amend (Doc. 856), as renewed in Webb v. United States, 17-cv-4040-JARJPO (Doc. 7) is denied;
IT IS FURTHER ORDERED that Webb’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 809) is denied without an
evidentiary hearing; Webb is also denied a certificate of appealability.
IT IS SO ORDERED.
Dated: March 26, 2021
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE
131

28 U.S.C. § 2253(c)(2).

132
United States v. Park, 727 F. App’x 526, 528 (10th Cir. 2018) (emphasis in original) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).

28