Petition for Writ of Certiorari — Runyan v. United States (No. 06-553)

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) upramne Count, U.S.

No._"__ § 6-55 3 00T 19 2006

OFFICE OF THE CLERK

In The

Supreme Court of the United States

ROBERT BEAM RUNYAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

CLIFTON L. “SCRAPPY” HOLMES

Counsel of Record

Tex. Bar No. 09907000

110 West Methvin Street

Longview, Texas 75601

903-758-2200 (Telephone)

903-758-7864 (Fax)

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 2256964

OK CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

DOES THE FIFTH CIRCUIT'S DECISION TO DENY

COA CONFLICT WITH THIS COURTS RULE IN

MILLER-EL V. COCKRELL, 537 U.S. 322, 336-37 (2003),

THAT LOWER COURTS MAY NOT DENY COA BY

FIRST DECIDING THE MERITS OF THE APPEAL?

DOES THE FIFTH CIRCUITS DECISION TO DENY

COA CONFLICT WITH THIS COURTS RULE IN

HARRIS V. NELSON, 394 U.S. 286, 291 (1969), REQUIR-

ING THAT SECTION 2255 MOVANTS BE GIVEN A FAIR

OPPORTUNITY TO DEVELOP THEIR EVIDENCE?

INTERESTED PARTIES

1. Petitioner: Robert Beam Runyan

2. Respondent: United States of America

3. Counsel for Petitioner: Mr. Clifton L. “Scrappy” Holmes

4. Counsel for Respondent: Paul D. Clement, Solicitor

General of the United States, U.S. Department of Justice,

Room 5614, 950 Pennsylvania Avenue, N.W., Washington,

DC 20530-0001, (202) 514-2217

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............c0sssssscrsovesereessrsees i

DOES THE FIFTH CIRCUITS DECISION TO

DENY COA CONFLICT WITH THIS COURTS

RULE IN MILLER-EL V. COCKRELL, 537 USS.

322, 336-37 (2003), THAT LOWER COURTS MAY

NOT DENY COA BY FIRST DECIDING THE

BEES OF THE APE ALS ccccrceocssonsorsessccsscesessesesers i

DOES THE FIFTH CIRCUIT'S DECISION TO

DENY COA CONFLICT WITH THIS COURT'S

RULE IN HARRIS V. NELSON, 394 U.S. 286, 291

(1969), REQUIRING THAT SECTION 2255

MOVANTS BE GIVEN A FAIR OPPORTUNITY TO

DEVELOP THEIR EVIDENCE? o.-cccccsssssssssseesessseses

INTERESTED PARTIES ...cccscssssessecescescsssssssssscscsseesense ‘i

TABLE OF CONTENTS .ccccsssssccsscsssssssssecsessesssssecessesssn ‘ii

TABLE OF AUTHORITIES ......cescccscccssssssssssesesessecssssseee y

OPINIONS BELOW.j.sscssssssssssssssssssssssssssssssssesesssssssesees 1

JURISDICTION. .cccssssssscssscscsssssvcsescsesssssssessecsessssecessessen 1

CONSTITUTIONAL PROVISIONS ...ssccsssssssecsscssseceeeee 1

STATEMENT OF THE CASE uocssecccccccsssssssssseeseesssssnseve 2

ARGUMENT/REASONS FOR GRANTING THE

OO OLE LLL nO 23

TABLE OF CONTENTS - Continued

Page

1 The Fifth Circuit Court of Appeals’ decision

directly conflicts with this Court’s rule, stated

in Miller-El v. Cockrell, 537 U.S. 322, 336-37

(2003), that lower courts may not deny Certifi-

cate of Appealability by “first deciding the mer-

its of [the] appeal, and then justifying ...

denial of COA based on .. . adjudication of the

actual merits ... in essence deciding an appeal

I NS caiesaiacisdentncisiniettsietninterernene 23

2 The Fifth Circuit Court of Appeals’ decision

directly conflicts with this Court’s rule, stated

in Harris v. Nelson, 394 U.S. 286, 291 (1969),

requiring that Section 2255 Movants be given

a fair opportunity t~ develop evidence in sup-

OE GE Ae RE is ecsenstscpavincdsconoinsestasainesexies 29

NIT scscscueiiigtinidnedntcianiensnsgiceysenisceianmidddinasianabionnes 29

I sabes basiviacesvdptshcbauaxetedsssddatesbennsisubiedneadtetoletenereodin 30

APPENDIX A: Fifth Circuit Opinion..............eeeeeeee App. 1

APPENDIX B: Fifth Circuit Order denying petition

Be I CE iiiacsctnntictistintesnsisnnacesaianacisores App. 4

TABLE OF AUTHORITIES

Page

UNITED STATES SUPREME COURT

Barefoot v. Estelle, 463 U.S. 880 (1983).........:ccccsceeeeeeeees 24

Harris v. Nelson, 394 U.S. 286 (1969) ............ ee eeseeeeeees 27, 28

Holmes v. South Carolina, 126 S. Ct. 1727 (2006)........... 12

Liteky v. United States, 510 U.S. 540 (1994)... s: 14, 29

Lockhart v. Fretwell, 506 U.S. 364 SRR ICESE Rta 21

Miller-El v. Cockrell, 537 U.S. 322 (2003) ............000 passim

Nix v. Whiteside, 475 U.S. 157 (1986)...........::sssssseseeeeeeeees 21

Runyan v. United States, No. 02-232 (Oct. 7, 2002)

Is SED ccechscsnsecancchenvcviascsancdsiicevenedsanibenbees 13

Slack v. McDaniel, 529 U.S. 473 (2000) ................ 22, 23, 24

Strickland v. Washington, 466 U.S. 668 (1984)........... 21, 26

Tennard v. Cockrell, 542 U.S. 274 (2004) ........ ccc eeee eee eeees 23

Tumey v. Ohio, 273 U.S. 510 (1927)......ccccceccrersssersssecccesees 14

FEDERAL COURTS OF APPEALS

Bigby v. Dretke, 402 F.3d 561 (5th Cir. 2005)... 29

United States v. Auten, 632 F.2d 478 (5th Cir. 1980)....... 30

United States v. Burrows, 872 F.2d 915 (9th Cir.

TInt coc esdsiglebtesecinilglsiniiacanionneualiasamiamnnet: 21, 28

United States v. Donato, 99 F.3d 426 (D.C. Cir.

RSE RSE Se aes NPR EPSON OCR Se rn me 15

United States v. Edwards, 442 F.3d 258 (5th Cir.

POSER SHEET EEO EHH ETE EES EHE ESET REESE TE EEHETEEES ESE SEES EEE EHEEE

eereceree

TABLE OF AUTHORITIES — Continued

Page

United States v. Pena, 949 F.2d 751 (5th Cir, 1991)......... 26

United States v. Runyan, 275 F.3d 449 (5th Cir.

SAP hiceiccuinlbiuetiuasiiiacagdlantcindiiiiiaaadibienibaenmamainiaieneibadiaiiies 12

United States v. Runyan, 290 F.3d 223 (5th Cir.

NE Ee REND SON MON ROMANE 2 apo 12, 13, 18

United States v. Runyan, No. 02-10995 (5th Cir.

SS: Fi SEND eirinsnicsceiiiciasiinbicidbeniadibiescesainaheebdicilaiinadinbicabaica is 13

United States v. Runyan, No. 05-10458 (5th Cir.

EE Te ee sacieciecsdcceacscndecdeliianinsictccieiaaiiaiablaticmnnglbcileising 1

United States v. Scott, 909 F.2d 488 (11th Cir. 1990)... 1, 14

FEDERAL CONSTITUTIONAL AND STATUTORY PROVISIONS

SF Ss SEG, Wi eit tnsessiceeimnininieaeenns 1

Fae SE, INTE, TI cetrcietsenstenencesnsntinintiicdnianianipnsnnsenions 1

a i iecnccinionceisutshliaashddceilenindeeddiatadueinipetiainatneneeneian 2

Fe Es Oe ecdinnoccinesidcinncictbietipicareiiniaianintsaadettinisnuntineananes 2

BD ae Se rteihddotivcincininrcncicteiininibatisamgivamcines 2

Sas Oe ietiisiiedenniinveinsinenadiieniniiinsissinanenninien 2

Be es Oe isch nckcnissinaniiteiccsotehinnisiditinntniattithandinuibieiiaaibiatit

Be Re ee eaisiatiailnsdusesiikcnssutanocnicenhaaitateansikiotbcbiintiadiaanial passim

Fed. Judicial Code §§ 144 and 455(a) 0.0... eecseeereneneee 20

Rule 7(a) of the Rules Governing Section 2255

IE iiss: cdcscaneialeencainiaiiduicsnadnaeaeinneinacabaiasteanamasnans 21

EE, ee ARs Ns END sicscicnsontnencicscavenccseamensaninecnenite 26

ee as ID IE senses nccneninopinmecevrniinintensiiian 26

ee ne ie ie icaiicinsantdishaoscsecenonsiaicaibbaisinvanbinbanes 20, 22

PETITION FOR WRIT OF CERTIORARI

Petitioner, Robert Beam Runyan, respectfully peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in this

case.

CPINIONS BELOW

The Court of Appeals unpublished decision, United

States v. Runyan, No. 05-10458 (5th Cir. June 12, 2006), is

located at Appendix A. Petitioner filed a timely sugges-

tion for panel rehearing from the Court of Appeals’ deci-

sion, which was denied on August 1, 2006. Appendix B.

JURISDICTION

The Court of Appeals had jurisdiction under 28 U.S.C.

§ 2255. This Court has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

Amendment XIV

No State shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State

deprive any person of life, liberty, or property,

- without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of

the laws.

STATEMENT OF THE CASE

Due to judicial bias, Governmental suppression of

exculpatory evidence, and the curtailment of a fair and

proper opportunity to present a defense at trial, on appeal,

and in post-conviction review, Runyan languishes in illegal

confinement.

1. Pre-Trial Developments.

Runyan was indicted on October 13, 1999, with two

counts of sexual exploitation of children under 18 U.S.C.

§ 2251, one count each of distribution and receipt of child

pornography under 18 U.S.C. § 2252A(a)(2), possession of

child pornography under 18 U.S.C. § 2252A(5)(B), and one

count of forfeiture under 18 U.S.C. § 982. The Government

made several plea offers, the final one occurring on April 7,

2000, wherein the Government conveyed a formal written

document to trial counsel, J.W. Johnson, agreeing (with

the cooperation of the state District Attorney) to dismiss

remaining federal counts and all of the current indict-

ments pending against Runyan in state court in return for

Runyan’s federal court plea of guilty to Possession of Child

Pornography, a sentence of no more than five years in

accordance with the federal sentencing guidelines; and a

fine of no more than $250,000.00. The trial court rejected

this final proposed plea agreement on Tuesday, April 11,

2000, without a hearing. At the Government’s motion, the

trial court dismissed Counts 2 and 6 on April 14, 2000.

A jury trial took place from April 17, 2000, to April 21,

2000. The Government was represented by Mr. Chad

Meacham and Ms. Tanya Pierce. Lead retained counsel for

Runyan was Mr. J.W. Johnson, who had replaced Mr.

Floyd Holder as lead counsel six months prior to the trial.

However, Holder was still counsel of record as of the day of

pretrial hearings and jury selection. Just prior to the

beginning of the trial on April 17th, Holder approached the

trial court and conveyed the following information to the

court in chambers, ex parte, and without notification to

Johnson of his intended course of conduct:

Since the date Mr. Johnson was employed ... I

have had no contact with the client. I have been

helping Mr. Johnson with federal rules and pro-

cedural questions and questions of law.

The plea that was arrived at and scheduled to be

given last Tuesday was not acceptable to the

Court, and we began to get ready for trial. I be-

came concerned about the shape that the evi-

dence appeared to be taking, and expressed those

concerns to Mr. Johnson stating that they were

inconsistent with the facts that I believed them

to be. I did advise Mr. Johnson that if Mr. Run-

yan took the witness stand and related facts con-

sistent with what I perceived the defense to be

shaping up to be, that I would have an affirma-

tive duty to advise the Court that a fraud was be-

ing committed on the Court, and my services had

been used to fabricate this fraud, and urged with

the utmost suasion that he urge Mr. Runyan not

to testify, because should he do so, I would have

no question or no option but to notify the Court.

I was advised Saturday afternoon that I was mis-

taken as to the facts, and that Mr. Runyan did

intend to testify. I advised Mr. Johnson I would

have no option but to ask the Court to let me

withdraw, and urged him once again not to let

Mr. Runyan testify, and that if he did I would

have no option but to come to the Court and ex-

plain exactly what the facts were that I thought

to be, and I would ask the Court at this time to

permit me to be excused. And should the defense,

despite my exhortations, decide to put Mr. Run-

yan on, I would come down and relate to the

Court or to —- I would just simply try to put things

right.

1R88-90; 7R2-4.’ The court granted Holder’s motion. 1R90;

7R4. Holder responded that he would ask the Government

prosecutors to let him know when they were to rest, and

he would “head back this way.” 1R90; 7R4. Runyan did not

testify. On April 21, the jury returned a verdict of guilty on

all four remaining counts. On July 28, 2000, the court

sentenced Runyan to a term of imprisonment of 300

months, supervised release for a term of three years, and a

special assessment of $400.00.

2. Summary of Evidence Presented at Trial.

In the summer of 1995, Runyan’s wife, Judith Runyan

and her daughter Rickie Adams moved to Brownwood.

Runyan’s main business oface was in Coleman. Runyan’s

ranch was between Coleman and Santa Ana. Runyan had

a secondary office in Brownwood. The family would meet

in Brownwood and at the ranch. 9R120-21. Runyan closed

his business and began working in Fredericksburg in

January 1998, where he worked for a year. Jd. at 121-22.

He maintained offices in the Coleman State Bank during

that time. Jd. In January 1999, Judith separated from

Runyan. /d. at 88, 120-24.

Runyan filed for divorce in May 1999, and an attorney

told Judith to retrieve all of her personal property. 9R129-

32. On June 18, 2000, Judith went to the ranch house with

daughter Rickie and some friends. Jd. at 91-92; 158. They

entered the barn, where they discovered a black bag with

pornography in it, a vibrator, and a Polaroid camera. /d. at

’ This colloquy was not supplied to Johnson until on or about

March 15, 2001 (the date it was faxed from the United States Attorneys

Office) and Johnson did not know of its contents until some date after it

was received at his office.

93-98. Some developed Polaroid photos also were found

which depicted a naked Misty Metcalf. Jd. The settings for

the photos were Runyan’s office area in the Coleman State

Bank and the Runyan ranch house. Two additional boxes

contained lingerie and pornography videos. Jd. at 160-63.

Id. Judith put the material in a storage unit. Jd. at 103,

163-67.

On the next day, Judith and friends moved more

things from the ranch. 9R167-73. Included were a desktop

computer from Runyan’s ranch bedroom and recordable

CDs, floppy disks, and zip drives from near the computer

that Judith wished to search for financial material. Jd. at

105-07; 186-89; 208-16. On the CDs, pictures were found of

little boys involved in sexual activity with each other. Jd.

at 208-16.

The sheriff was contacted. Over several days, materi-

als retrieved from the storage unit, the materials found

near the computer, the Polaroids, and the computer were

turned over to law enforcement agents. 9R107-10; 1¢ 91.

The final batch of CDs were turned over on July 7th. Jd. at

202. Judith later turned over a laptop computer, formerly

owned by Runyan but then in Rickie’s possession, to

federal customs agent Nuckles. Jd. at 110-12.

Misty Metcalf claimed that, when she was twelve, she

began to mow the grass at Runyan’s ranch and clean his

office. 9R229. She claimed that Runyan recruited her to

pose for pornographic photos, saying he would make

money by selling the photos to persons in Japan. Jd. at

233-34. The Polaroid photos of her were when she was 15

or 16 years old. Jd. at 237, 84.

Metcalf denied ever having been at Runyan’s ranch,

downloading pornography, while Runyan -was gone, or

having ever looked at pornography on the computer she

shared with her boyfriend Nathan Wood more than once or

twice. Id. at 265-67; 273. She denied knowing how to

download pornography, although admitting that she had

taken computer classes since elementary school. Jd. at

266; 280. She denied creating files on a computer she

shared with Wood which were entitled, “Me one, Me two,

..+.” Id, at 269. She denied that photos in those files

looked similar to her and that she had solicited men for

sex over the internet. Jd. at 269-70.

Metcalf then admitted that Wood taught her in 1999

how to scan photographs onto the computer. 9R308-24.

She admitted using internet chat rooms and that, as a

result, she arranged meetings with three men at her

apartment. Before the third man had come, Wood taught

her to put her picture on the internet. Jd.

Nathan Wood testified that he knew Runyan for three

years. 11R624-26. He and Metcalf (a year younger in age)

became sexually intimate when she was 15. Id. at 626-28.

During Wood's five year relationship with Metcalf, she

used his computers to do a lot of chat room cyber sex. Id.

at 631. Metcalf also went to Runyan’s office in Coleman

and out to Runyan’s ranch twice a week. Jd. at 632-34. She

would play on Runyan’s office computers and go to the

ranch for long periods when Wood assumed Runyan was

not present, because Runyan was going back and forth to

Fredericksburg at the time. Jd.

Metcalf would send pornography pictures to people on

the internet, falsely claiming they were of her. 11R655-66.

She created files containing these photos, labeled “Me one,

Me two, Me three, etc.” Jd. at 649. Metcalf was good at

_ hiding things. Jd. at 650. Men came from out of town to

visit Metcalf, and she took phone calls from all over the

country. Jd. at 651-52. Metcalf prostituted herself, taking

advantage of people, including Runyan. Jd. at 655. Wood

sold his present computer, which he had shared with

Metcalf, to Runyan’s trial investigator. 11R642-44.

Wood’s great grandmother, S.E. Powell, testified that

Metcalf stayed at her house for two weeks, and Metcalf

would get up at noon, go straight to the computer and

never come up for air, all day and all night-long. 11R697.

Powell had never heard Metcalf make a truthful state-

ment. Jd. at 699.

Texas Ranger Bobby Grubbs presented evidence that

Runyan told him he discovered nornography at a roadside

park and planned to store it in his barn only until he could

burn it when a burn ban was lifted. 10R418-21; 440. A

friend of Runyan’s, Don Henderson, also testified that near

the middle of February 1999, he received a phone call from

Runyan wherein Runyan told him he had found a bunch of

pornography on CDs in trash thrown beneath the Colorado

River bridge in a park. 11R735. He said Runyan told him

he put the CDs in his computer and found some “pretty

rank crap” which he was going to burn. Jd. For two years

there was a burn ban in Coleman County and it was in

place in February through April of 1999. Jd. at 737-38.

Customs agent Rick Nuckles delivered the desktop

computer from the ranch house and the laptop which had

been in Rickie’s possession to Tim Wargo, senior special

agent for the Customs Service computer forensics squad,

for inspection. 10R451-55; 523-31. Nuckles inspected the

CDs, floppy disks and zip drives. Jd. at 451-55. He found

child pornography on the 3.5 inch floppy disks and two

CDs had photos of Misty Metcalf on them made with a

digital camera. Jd. at 455-64. Pursuant to a search war-

rant executed on June 21, Nuckles seized a backup tape

from the ranch office area with “Bob’s Notebook” written

on it. Id. at 464-66. The backup tape contained 13,500

child pornography images of which 30-45 percent were

teens. Id. at 478. No pictures of Metcalf were on backup

tape. Id. at 479; 523-31. Nuckles could not tie together the

desktop from the Runyan ranch residence and Rickie’s

laptop as having a single download record (in common).

10R496. Runyan’s banking records looked normal even

though Metcalf claimed that he was selling child pornog-

raphy. Jd. at 531. No evidence was found anywhere that

’ Runyan made any income from the sale of child pornogra-

phy. Jd. at 532.

Wargo testified that he found only one image on the

desktop computer that seemed to be child pornography.

10R558-70. The computer, which had a standard internal

modem, was loaded with adult pornography and its

download log showed visitation to (mostly teen) child

pornography newsgroups. Jd. at 563-71. Wargo found three

photos on Rickie’s laptop that he considered child pornog-

raphy. Jd. at 571, 596-610.

Chauncey Green, the defense computer expert, ob-

tained a printout of directories, folders, and files that were

taken from the CDs, zip drives, diskettes, and backup

tapes that the Government alleged to belong to Runyan.

Id. at 11R765-68. Green compared the days and dates of a

five-day workweek in 1998 with the computer calendar

dates, from Feb. 1, 1998 to Dec. 31, 1998. Id. at 769-70.

Nine hundred and ninety-nine of the image creation and

modification dates were on workdays during the time

Runyan worked in Frederickburg. /d. at 770. Green

concluded that. someone other than Runyan downloaded

them. Jd. at 778-80. Green opined that downloading these

kinds of files would be very time consuming — hours, days,

weeks — and that it was unlikely the dates were falsified.

Id. The CDs could have been created by anyone with a

modem and CD burner on a desktop or laptop. Jd. at 782-

83. The image CDs were not made on the Runyan ranch

computer, because they would have been found to exist on

the hard drive somewhere. 13,000 files could not go

through a computer and just vanish. Jd. Green likewise

found no evidence of these files having passed through

Runyan’s laptop (from his stepdaughter) or the Wood

computer, and concluded that none of the Government’s

evidence was made on any of the three computers in

custody. Jd. at 783-84. Green disagreed with Wargo’s

testimony that there were ways-of circumventing the hard

drive by downloading directly from the internet to CD. Id.

Green admitted that, assuming Runyan always had up-to-

date laptops and a modem for the internet, the 999 files

could have been created by him anywhere there was a

phone line. Jd. at 801-02. On a regular phone line, how-

ever, it would take a long time - a minute - to download

each of at least 13,000 photos of alleged child pornography.

Id. at 803.

Green also analyzed the hard drive of the computer

Wood had shared with Metcalf. 11R771-72. He found

graphic image files on the computer, labeled “Me one, ...

Me six.” All contained a picture of the same nude young

woman. Jd. When Green found some images of child

pornography, he notified trial counsel Johnson. Jd. at 773-

76. The child pornography images were purposefully

stored. Jd. Johnson told Green to surrender the machine to

Customs, which was done the next day. Jd. Green was told

he could not access Wood’s drive again until Wargo com-

pleted his examination of it. Jd. Green estimated that the

Wood computer contained fifteen saved folders with 1500

images. He had passed through about 200 to 300 pictures,

mainly of teens, before he reached the bestiality and child

pornography. 11R777-79. Then he ceased searching. Id.

Pursuant to a Customs order, he destroyed a mirror image

of the hard drive he had made. Id. Green added that the

child pornography that he saw on the Wood computer

looked like photos on the backup tape labeled “Bob’s

Notebook.” They were very similar, involving 11-12 year

old girls. 11R796-98. Green noted that the backup tape

could be written over and over, was portable, and could be

used from o~¢ computer to another. Someone (other than

Runyan) could have downloaded pornography onto it,

using it like an audiotape. Jd. at 787-88.

After Green turned the Wood computer over and

destroyed his mirror image of its hard drive, the defense

had no further access to that hard drive until after Run-

yan’s trial. The defense protested, as has been noted, its

lack of access to the evidence and slowness of the Govern-

ment experts to process it. Nuckles finally testified that,

only the night before, he had finished reviewing a diskette

sent him by Wargo the previous week, finding some

questionable images, but no five or six year old child

pornography. 11R831-33. No images were printed. Id.

Defense counsel accused Nuckles of preventing the defense

from being able to make a case by holding himself as the

“sole and exclusive judge of what was pornography or

what wasn’t or what was not child pornography on Nathan

Wood’s computer.” Jd.

3. Appeal and Motion for New Trial Developments.

Runyan appealed his conviction and sentence to the

Fifth Circuit Court of Appeals. On August 20, 2001,

Runyan filed a Motion for New Trial asserting that “newly

discovered or newly available evidence show[ed] that the

Defendant was not permitted to present his full defense to

the jury.”

The defense trial theory was that Metcalf (alone or

with others besides Runyan) took the underage photo-

graphs of her and put the child pornography on the com-

puter in Runyan’s house. 1SR2-4. Trial counsel wanted to

use the actual child pornography images on Metcalf’s and

Wood’s shared computer to impeach her denial that she

had downloaded pornography of any kind and to graphi-

cally show (e.g., through similar poses between the “me

one, me two” photos and those of Metcalf in the items at

Runyan’s farmhouse), that she alone could have been

responsible for the evidence found on Runyan’s computers.

Taking at face value agent Nuckles’ assurance there were

no exculpatory images on the computer, the trial court

refused to examine the computer in-camera and prevented

Runyan from presenting the jury with the evidence.

11R831. The trial court denied Runyan’s motions for in

camera inspection of the hard drive images and for pro-

duction of those images as exculpatory evidence, filed on

the second and fourth days of trial. The court only allowed

the defense expert to testify that he found images of a

questionable nature, permitting no images to go to the

jury, and preventing proper identification of the images as

those of children. 11R773-74.

Given Nuckles’ testimony that there was no exculpa-

tory evidence on Metcalf’s and Wood’s hard drive, a mirror

image was released to appellate counsel. 1SR5. Thereafter,

hundreds of images were found on the hard drive of

females that counsel believed were possibly under age.

Thirty-three images were printed and sent to two board

certified pediatricians with extensive experience examin-

ing adolescent females. Jd. at 6. Both doctors gave expert

opinions to a reasonable medical certainty that at least ten

of the images were of girls under age 16. Jd. at 7. Both

experts assigned an age of under 16 to the girl depicted in

images corresponding to the “me one, me two” documents.

Id.

Runyan requested a hearing before the trial eccurt. Jd.

at 9. Runyan asserted that, had the court beer. aware that

the physical evidence existed that, contreiy to her testi-

mony, Metcalf had downloaded many illegal images to her

computer during the relevant time period, it should have

allowed Runyan to present that evidenve to the jury as a

matter of defense. Jd. at 8. Runyan alleged a violation of

his Sixth Amendment right to present his defense and a

violation of his Fifth Amendment due process rights by

Government suppression of material, exculpatory evi-

dence. Jd. On August 20, 2001, Runyan moved for abate-

ment of his appeal and for temporary remand to the trial

court for a hearing on the Motion for New Trial. On August

30, 2001, the Fifth Circuit ordered the motion carried with

the case. On September 7, 2001, the trial court denied the

motion for new trial without a hearing. Runyan moved for

consolidation of the initial and motion for new trial ap-

peals, which was granted. ~

Runyan argued on appeal that he should have been

afforded a hearing on whether the defense expert had full

access to the Wood computer at trial and, pointedly,

whether “it would have been a different trial had the

defense presented to the jury the printed images contained

in sealed Exhibits 6-38.” Id. at 18-19. He pointed out that

the evidence in the sealed exhibits supported the theory

that someone other than Runyan took the photos of

Metcalf and that Metcalf appeared to have learned the

poses from certain of the sealed images. Jd. at 8.

On December 10, 2001, the Fifth Circuit held that

portions of the pre-warrant search by law enforcement

officials violated the Fourth Amendment, and remanded to

the trial court for further fact findings on the applicability

of the independent source doctrine, an exception to the

exclusionary rule. United States v. Runyan, 275 F.3d 449,

468 (5th Cir. 2001). The trial court held a hearing and

issued findings. Upon return, on April 18, 2002, the Fifth

Circuit held that the independent source exception to the

exclusionary rule existed, and affirmed Runyan’s convic-

tions for receipt and possession of child pornography and

for sextial exploitation of a child, but reversed his convic-

tion for distribution of child pornography. United States v.

Runyan, 290 F.3d 223 (5th Cir. 2002). The Court also

denied Motion for New Trial relief, finding that Runyan

failed to prove Brady materiality. Jd. at 247. The Court

found that Runyan’s post-trial expert analysis “only

verified [the] information” already presented to the jury by

the defense computer expert and the Customs agent, and

that presentation of the expert analysis would not have

affected the outcome. Jd. at 247-48. The Court vacated

* Runyan believes the Fifth Circuit erred by neglecting the point

that the jury should have been allowed to view the very relevant images

from Metcalf’s computer themselves because the experts confirmed

they were of underage females. The experts’ access to the evidence, in

other words, was a necessary step toward having the images them-

selves published to the jury. The images were the exculpatory evidence

and the trial court’s prevention of the jury from seeing those images

violated Runyan’s rights to due process and to present a defense. See

Holmes v. South Carolina, 126 S. Ct. 1727 (2006) (holding trial court

erred by focusing on the strength of the prosecution’s case, rather than

(Continued on following page)

Runyan’s sentence and remanded to the trial court for

entry of judgment and re-sentencing. Jd. at 252. Rehearing

was denied on May 17, 2002.

Runyan filed a petition for writ of certiorari, which

was denied on October 7, 2002. Runyan v. United States,

No. 02-232 (Oct. 7, 2002) (unpublished order).

On August 30, 2002, the trial court entered a new

judgment revising Runyan’s sentence to a term of 240

months as to Count One and 180 months as to each of

Counts Four and Five, all terms to run consecutively.

Runyan timely appealed. By per curiam order, The Fifth

Circuit denied relief on March 7, 2003. United States v.

Runyan, No. 02-10995 (5th Cir. Mar. 7, 2003) (unpublished

order).

4. Post-Conviction Review.

On June 4, 2004, Runyan filed his Motion to Vacate

under 28 U.S.C. § 2255. He raised three claims: (1) He had

been tried by a judge harboring actual bias against him in

violation of the due process clause of the Fifth Amend-

ment; (2) Floyd Holder’s in camera, ex parte communica-

tion with that judge caused the judge to be biased against

him, violating his right to effective assistance of trial

counsel; and (3) J.W. Johnson’s failure to timely pursue a

very favorable plea agreement also violated his right to

effective assistance of trial counsel. Runyan specifically

requested an evidentiary hearing. In support of his claim

that his due process rights had been violated by the actual

bias of the trial judge, Runyan argued as follows:

the probative value or the potential adverse effects of admitting the

defense evidence of third-party guilt).

A genuine question as to this Court’s impartiality

is raised by the unusual circumstances of Run-

yan’s trial - specifically this Court’s trial deci-

sions when viewed in light of Floyd Holder’s ex

parte, in camera assertion, just prior to trial, that

Runyan intended to commit fraud upon this

Court and the jury. It is doubtful that any “aver-

age man as judge” could fairly adjudicate a case

following such a bombshell from counsel deliv-

ered in secret. In essence, this Court was actu-

ally biased against Runyan because trial

counsel’s (Holder’s) in camera communication —

unknown to counsel who was actually represent-

ing Runyan (Mr. Johnson) and conducting the

trial — caused this Court to have an opinion of

Runyan that “rest[ed} upon knowledge that [this

Court] ought not to fhave] possess[ed]” which

this Court also expressed with a high degree of

antagonism during the course of the trial.

Petition at 38-39.

Citing Liteky v. United States, 510 U.S. 540, 550, 555

(1994), Runyan pointed out that he had been prevented

from exercising his statutory right to move for recusal

because trial counsel (Mr. Johnson) had not been told by

the Court or Mr. Holder that Mr. Holder told the court

Runyan was going to commit fraud. Petition at 39 n.5.

Statutory grounds for recusal include knowledge that a

court ought not to possess. Liteky, 510 U.S. at 550. Runyan

informed the court that, ethically, Mr. Holder should have

resigned from the case without unnecessarily violating the

attorney-client privilege and conveying to the court his

opinion (alone, not an established fact) about Runyan’s

plans to testify. United States v. Scott, 909 F.2d 488, 492,

494 n.10 (11th Cir. 1990). The court gained knowledge that

it ought not possess, and it was the sort of knowledge

which would have caused “the average man as a judge...

not to hold the balance nice, clear, and true between the

State and the accused.” Petition at 38 (quoting Tumey v.

Ohio, 273 U.S. 510, 532 (1927)). This constituted a viola-

tion of due process which played out at trial as the court

made one after another hostile (and at times erroneous)

evidentiary decisions. Tumey, 273 U.S. at 532.

At the same time, Runyan clearly distinguished Liteky

as a statutory case, providing grounds for recusal, from his

own case wherein he was alleging that the trial court was

actually biased against him by Holder’s action. Petition at

39 n.5 (quoting United States v. Donato, 99 F.3d 426, 434

(D.C. Cir. 1997) (“Liteky, however, was a statutory case,

where the claim was that the trial judge should have

recused himself. Donato’s claim is different. She claims

that the district court judge displayed such bias against

her and her attorney that she did not receive a fair trial.”).

Runyan offered strong evidence of actual bias.

a. The trial court failed to exercise its substan-

tial duty to protect Runyan’s rights by find-

ing out if his trial counsel knew what Mr.

Holder had told the court.

“{O]ne of the clearest indications of bias” was the trial

court’s failure to exercise its substantial duty to assure

that Runyan’s rights were guarded once Mr. Holder had

betrayed client confidences to the court and told the court

Runyan intended to commit fraud. Certainly, the Eighth

Circuit’s expression of that duty, as presented to the trial

court, constitutes an opinion of reasonable jurists:

The most weighty decision in a case of possi-

ble client perjury is made by the lawyer who de-

cides to inform the court, and _ perhaps

incidentally his adversary and the jury, of his cli-

ent’s possible perjury. This occurs when the law-

yer makes a motion for withdrawal (usually for

unstated reasons) or allows his client to testify in

narrative form without questioning from counsel.

Once this has been done, the die is cast. The

prejudice will have occurred. At a minimum, the

trial court will know of the defendant’s potential

perjury. For this reason, defense counsel must

use extreme caution before revealing a belief of

impending perjury. It is, as Justice Blackmun

noted, the “rarest of cases” where an attorney

should take such action. Once the disclosure of

the potential client perjury has occurred, the

trial judge can limit the resulting prejudice by

preventing further disclosures of client confi-

dences, by informing the attorney of the obliga-

tion to his client, and by informing the client of

her rights and determining whether she desires

to waive any of them.

Petition at 40-41 (quoting United States v. Long, 857 F.2d

436, 447 (8th Cir. 1988)). The Record leaves no room for

any other conclusion than that the trial court was “preju-

diced” by Mr. Holder’s act, which had been unnecessary in

itself, and that the trial court made no effort to ascertain

whether Mr. Johnson knew what Mr. Holder had conveyed

and made no effort to protect Runyan’s rights. On this

record alone, it was unreasonable for Judge Reavley to

deny COA upon finding “no evidence” in the Record of

“bias or impropriety of the district judge.” See infra.

b. The trial court made very unfair and preju-

dicial evidentiary decisions implicating Run-

-yan without foundation and preventing

Runyan from raising a defense.

The trial court made evidentiary decisions so unfair

and prejudicial in themselves that they violated Runyan’s

right to a fundamentally fair trial. In the course of making

these decisions, the trial court projected to the jury erro-

neously and inappropriately that Runyan had confessed to

looking at child pornography on the desktop computer

seized by the Government from his ranch, and that Run-

yan had objected specifically to the Government’s search of

that computer; and the court prevented Runyan, in turn,

from supporting his defense theory that Misty Metcalf or

someone else downloaded child pornography onto that

computer, the CDs, and backup tapes at Runyan’s ranch,

by preventing trial counsel and the jury from getting

access to the evidence of child pornography on Metcalf’s

and her boyfriend’s.computer until trial was over.

The trial court allowed, over objection, an unfounded

conclusion by the Government that Runyan had confessed

to going to child pornography websites on the desktop

computer taken from his ranch, assisting the Government

to meet its burden of proof for Count Four (receipt of child

pornography) and Count Five (possession of child pornog-

raphy). 10R540-41. The Government asked Nuckles,

“While it could have reflected downloads from just about

any period of time, what person has given an oral recorded

statement saying he was using that computer to visit child

pornographic newsgroups?” The trial court overruled

counsel’s objection that there had been no evidence or

testimony saying any particular persen had used the

desktop computer. The Government refined its question: “I

am talking about what individual has given a sworn oral

statement that is in evidence in this case saying they

visited child pornographic newsgroups and used that

computer to do it. (emphasis-added) I am talking about

the defendant in his statement.” Nuckles affirmed, “The

defendant did tell ... Ranger Grubbs that, in his state-

ment.” The trial court again overruled objection. Jd.

Although Runyan spoke to. Ranger Grubbs about

going to sites on some computer, he did not say he visited

any pornographic sites on the desktop computer nor

clearly state that he viewed any pictures on the internet

that constituted child pornography. 1R95-96. Runyan

referred to “teen” sites (not necessarily child pornography)

and said nothing about having seen or downloaded any

pictures. Also, in his discussion with Grubbs, Runyan only

referred to materials taken from the barn, not the com-

puter from the ranch house. 1R96-97. Grubbs did not

determine that the desktop computer belonged to Runyan

until late in the interview, well after the discussion of

pornography websites. 1R101. Thus, the implication that

Runyan confessed to having ever looked at pictures on the

internet constituting child pornography is false, as well as

the assertion that Runyan confessed to having done this

on the desktop computer. Yet, the court allowed it in.

Also over vigorous objection, the trial court allowed

the Government to elicit testimony from Nuckles that

Runyan allowed the Government to search other areas,

but not the desktop computer. On direct appeal, the Fifth

Circuit held that this error by the trial court — allowing

the Government to use a defendant’s refusal to consent to

a warrantless search to support an inference of guilt —

violated the constitution. United States v. Runyan, 290

F.3d 223, 249 (5th Cir. 2002). The Fifth Circuit found the

error harmless, failing to consider its effect in the trial’s

context — where the trial court also had just allowed the

Government to create the erroneous inference that Run-

yan confessed to using the same computer to look at child

pornography websites.

The trial court went so far as to refuse three times

(twice at trial; once on motion for new trial) to review in

camera the material on Metcalf’s and Wood’s hard drive,

which was in possession of the Government at trial and

which Runyan asserted should contain exculpatory evi-

dence impeaching Metcalf’s testimony. The court also

aggressively used trial counsel’s lack of access to the hard

drive to Runyan’s disadvantage. 10R539 (court undercut-

ting trial counsel’s cross-examination of Nuckles about

why he and Wargo had not examined the entire disk

containing Wood’s hard drive in three weeks, after the

defense had relinquished the computer to Nuckles upon

belief that certain files contained child pornography);

11R791-96 (court allowing cross-examination of Green on

Wood’s hard drive, over objection that the expert had been

prevented from looking at the hard drive; court lecturing

the defense about its access to the hard drive, when

defense access had been curtailed by law and the Govern-

ment’s actions); 11R832-37 (court asserting that questions

of Government restriction on the defense’s ability to view

the hard drive do not “resolve any issue in this case”). On

motion for new trial, the trial court treated the issue as

the receipt of a modicum amount of new material (the

expert’s opinions about what was on Metcalf’s and Wood’s

hard drive) rather than suppression of multiple actual

images of child pornography, including especially images

labeled by Metcalf and distributed by her on the internet

under the guise that they were images of herself.

c. The trial court directed insulting and threat-

ening comments toward trial counsel based

on apparent suspicion of counsel’s motives.

On numerous occasions, the trial court interrupted

trial counsel, often commenting that counsel’s questions

were not helping to resolve any of the case’s issues. R1: 42;

R2: 138, 139, 143, 189, 204, 446, 499-503, 715-26. At one

point, in front of the jury, the court suggested, without

foundation, that trial counsel was making misrepresenta-

tions. R2: 355ff. Then the court terminated the testimony

for the day abruptly in the middle of her testimony and

delivered the following chilling comment outside the jury’s

presence:

The Court: ... [I]f I determine that Mr. Johnson

was making misrepresentations ... then Mr.

Johnson and I are going to have ... a conference

concerning whether or not he will be held in con-

tempt. He is an officer of this Court, and if he is

making misrepresentations concerning docu-

ments or reports, then I consider that to be a

very serious matter. So I am putting Mr. Johnson

on notice that he is in jeopardy concerning this

matter.

R2: 359. The recerd suggests that the court projected

on counsel suspic “1 of a lack of candor that the court

undoubtedly harbored for the defendant because of Mr.

Holder’s clandestine action.

Despite all of the above evidence in support of

actual judicial bias, without holding an evidentiary

hearing, the trial court denied the Motion on March 3,

2005. Runyan moved for reconsideration under Rule 59(e),

Federal Rules of Civil Procedure, asserting that it had

been expected that the trial court would have recused

itself under the mandatory provisions of Sections 144 and

455(a) of the Judicial Code. Runyan also noted that, even

in denying his 2255 Motion, the trial court did not deny

that it harbored (at trial and in post-conviction) a personal

bias or prejudice against Runyan, only reinforcing Run-

yan’s first claim. Runyan also deemed that the trial court

admitted that it never informed Runyan’s trial counsel,

J.W. Johnson, that Holder betrayed client confidences to

the trial court and told the court that Runyan planned to

commit perjury. Runyan asserted that the presence of

ongoing actual bias was apparent in the following: (a) the

trial court’s lack of denial of actual bias; (b) the trial

court’s failure to timely insure Mr. Johnson and Runyan

knew the contents of the in camera discussion with Mr.

Holder; (c) the trial court’s failure to recuse itself at trial;

(d) the trial court’s failure to recuse itself in the Section

2255 proceedings; (e) the trial court’s mischaracterization

of Runyan’s first claim in his Section 2255 Motion as a

procedurally defaulted non-constitutional appearance of

propriety issue that did not rise to a miscarriage of justice,

when the issue was constitutional: an actually biased

tribunal;’ (f) the trial court’s premature resolution of the

factual issues in the Section 2255 Motion without issuing

* This was egregious because there was uncontroverted evidence

that Mr. Johnson was unaware of the condition leading to the court’s

bias (Mr. Holder’s closed colloquy) until trial was over as well as the

time for filing a Motion for New Trial under Rule 33(bX2), Fed. Rules

Crim. Proc. (seven days following the verdict).

any preliminary orders in the case;‘ (g). the trial court’s

premature resolution of the factual issues in the Section

2255 Motion without directing under Rule 7(a) of the

Rules Governing Section 2255 Proceedings that Runyan

should expand the record with affidavits the court subse-

quently found lacking; (h) the trial court’s premature

resolution of the factual issues in the Section 2255 Motion

without holding an evidentiary hearing which usually is

required when the Motion “states a claim based on mat-

ters outside the record or events outside the courtroom.”

United States v. Burrows, 872 F.2d 915, 917 (9th Cir.

1989); (i) the trial court’s reliance on inappropriate author-

ity to resolve the ineffective assistance claim involving Mr.

Holder; (j) the trial court’s fact findings ignored the

demonstrated actual bias at trial.

Asserting that the trial court had abused its discretion

by not recusing itself sua sponte, Runyan moved that

reconsideration be granted and that the court should

rescind its decision denying relief and recuse itself from

the case. On March 16, 2005, the trial court denied the

motion for reconsideration. Runyan appealed.

5. Certificate of Appealability.

The trial court denied Certificate of Appealability on

_all points on April 27, 2005. Runyan thereafter sought

Certificate of Appealability from the Fifth Circuit Court of

* Although the trial court never issued an order to show cause [as

far as Runyan knows] directing the Government to answer, the

Government sua sponte answered, and Runyan replied.

* The court relied upon Nix v. Whiteside, 475 U.S. 157, 165 (1986),

and Lockhart v. Fretwell, 506 U.S. 364, 370 (1993), in order to suggest

that a finding of prejudice under Strickland would give Runyan a

windfall he did not deserve. The court, thus, obviously continued to

believe Mr. Hojder’s unproven assertion that Runyan intended to take

the stand and commit perjury, although Runyan did not take the stand

at all.

Appeals. Runyan sought review of six issues: (1) whether

the trial court abused its discretion by failing to recuse

itself from adjudicating his Section 2255 Motion; (2)

whether the trial court abused its discretion by denying

his Rule 59%e) Motion; (3) whether the trial court abused

its discretion by denying an evidentiary hearing to resolve

the controverted, material facts related to the judicial bias

and ineffective assistance claims; (4) whether the trial

court was actually biased against Runyan in violation of

due process; (5) whether Mr. Holder’s in camera, ex parte

communication with the trial court denied Runyan effec-

tive assistance of trial counsel; and (6) whether Mr. John-

son’s failure to diligently and timely pursue a very

favorable plea agreement denied Runyan effective assis-

tance of trial counsel.

On June 12, 2006, in a two-page, cursory order, Judge

Thomas Reavley, a member of the Fifth Circuit panel

assigned to Runyan’s case, denied COA. Appendix A

(Order, June 12, 2006). Judge Reavley described the COA

standard as follows:

To obtain a COA, Runyan must make “a substan-

tial showing of the denial of a constitutional

right.” § 2253 (c)(2). For claims denied on proce-

dural grounds, this requires Runyan to show

“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 dis-

trict court was correct in its procedural ruling.”

For claims denied on their merits, Runyan must

“demonstrate that reasonable jurists would find

the district court’s assessment of the constitu-

tional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

Order, June 12, 2006, at 1-2. Judge Reavley then listed

Runyan’s six issues (above) and summarily rejected them,

stating in full: “A review of this record reflects no evidence

of bias or impropriety of the district judge, no evidence of

ineffectiveness of counsel, and no error in denying an

evidentiary hearing. Runyan has failed to make the

showing required to obtain a COA. See Slack, 529 U.S. at

484. Accordingly, Runyan’s COA motion is denied.” Jd. at 2.

Runyan filed a motion for panel rehearing arguing

that Judge Reavley’s order denying COA fell short of

“paying lipservice to the principles” defined by this Court

for “guiding issuance of a COA.” The motion was denied on

August 1, 2006. Appendix B.

Runyan now seeks certiorari from the Fifth Circuit

decisions denying COA on his Section 2255 Motion and

denying panel rehearing.

ARGUMENT/REASONS FOR GRANTING PETITION

1. The Fifth Circuit Court of Appeals’ decision

directly conflicts with this Court’s rule, stated in

Miller-El v. Cockrell, 587 U.S. 322, 336-37 (2003),

that lower courts may not deny Certificate of

Appealability by “first deciding the merits of

[the] appeal, and then justifying ... denial of

COA based on... adjudication of the actual mer-

its ... in essence deciding an appeal without ju-

risdiction.”

Judge Reavley’s order denying COA is so inadequate

that it falls short of even “paying lipservice to the princi-

ples” defined by this Court for “guiding issuance of a

COA.” Tennard v. Cockrell, 542 U.S. 274, 283 (2004). The

Order indulges in exactly what this Court warned against

in Miller-El v. Cockrell, 537 U.S. 322 (2003). It “sidesteps”

a proper process of COA determination “by first deciding

the merits of [the] appeal, and then justifying its denial of

a COA based on its adjudication of the actual merits ... in

essence deciding an appeal without jurisdiction.” Miller-

El, 537 U.S. at 336-37.

The Order peremptorily reviews the merits by (1)

defining what is required for COA in an overly restrictive

way and (2) concluding astoundingly and without explana-

tion that there is “no evidence” in support of the issues.

The “no evidence” finding appears designed to merely end

all chance of review rather than to determine what a

“reasonable jurist” might conclude about the evidence. Put

another way, no reasonable jurist should have found that

there is “no evidence” of judicial bias in support of Run-

yan’s issues; and thus, the way in which Judge Reavley

conducted his COA analysis cannot comport with this

Court’s requirements as elucidated in Miller-El. It means

that he must have inappropriately prejudged the merits.

This Court repeatedly has defined the proper stan-

dard for Certificate of Appealability as follows:

The “controlling standard” for COA determina-

tion of a constitutional claim is:

[The] petitioner must “sho[w] that reasonable ju-

rists could debate whether (or, for that matter,

agree that) the petition should have been re-

solved in a different manner or that the issues

presented were ‘adequate to deserve encourage-

ment to proceed further.’”

Miller-El, 537 U.S. at 336; Slack, 529 U.S. at 484 (both

quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Judge Reavley’s Order utilized a shorthand version of the

Barefoot standard that, when used in isolation, omits

everything following the conjunction “or” in the full Bare-

foot standard, unfairly limiting a case like Runyan’s in

which discovery or an evidentiary hearing should be

granted for development of well-founded allegations of

constitutional error. In a case in which expansion of the

record should have been granted for full development of

the issues, and was not, the question whether the petition

should have been resolved in a different manner cannot be

fairly asked or answered because the defendant’s right to

full development of the facts was not afforded.

Judge Reavley also quotes the Slack standard for

granting COA on procedural grounds, which could relate

to the district court’s denial of an evidentiary hearing or to

the court’s treatment of Runyan’s constitutional claim of

“actual bias,” which the district court transformed into

what it asserted was a procedurally defaulted statutory

claim. However, Judge Reavley clearly enters a simple

merits ruling of “no evidence” existing to support the claim

of actual bias (and, therefore, to support ineffective assis-

tance) in order to dispose of the COA application. In the

face of allegations and record facts as developed as Run-

yan’s, this is precisely the exercise in merits decision-

making this Court rejected in Miller-El.

a. The Fifth Circuit made factual findings to

deny COA that were blatantly unreasonable.

Judge Reavley rendered a merits decision without

jurisdiction, finding that there was absolutely “no evi-

dence” to support any of Runyan’s allegations. This boldly

rejects record facts which, without more, support an

inference of actual bias on the part of the trial judge, who

wae subjected (unbeknownst to Runyan or his counsel) to

an enormously -biasing influence immediately prior to

Runyan’s trial. Furthermore, the declaration of “no evi-

dence” artfully slides around the district court’s erroneous

procedural disposition of the “actual bias” issue and the

issue whether the district court abused its discretion by

failing to recuse itself sua sponte from adjudicating Run-

yan’s Section 2255 Motion.

The Fifth Circuit, at the very least, should have

granted COA on the district court’s procedural treatment

of the “actual bias” claim (and its ramifications for the

ineffective assistance claim as to Holder). The district

court’s finding of procedural default against trial and

direct appeal counsel for not raising the “actual bias” issue

earlier is baseless, easily within the realm of the “debat-

able” as a procedural ruling. No evidence controverts that

trial and appeal counsel (Johnson) did not learn of the

substance of Mr. Holder’s comments in the ex parte, in

camera colloquy until after the time that the Federal

Rules allowed expansion of the record on appeal. While

Johnson learned on April 17, 2000, that Holder had been

to the trial court’s office and had been allowed not to

participate in the trial, Johnson did not learn what Holder

told the judge until on or about March 15, 2001, when he

received a copy of the ex parte, in chambers colloquy. This

was after Johnson had mailed his appeal brief (in which

he could not have expanded the record), beyond the period

for filing a relevant motion for new trial in which he could

have expanded the record (under Rule 33(b)(2), Federal

Rules of Criminal Procedure; 7 days following verdict), and

it pertained to an issue not relevant to the only other

means available to expand the record besides a Section

2255 Motion, Rule 33(b)(1), Federal Rules of Criminal

Procedure (for raising issues of actual innocence).°

b. Conclusion.

Judge Reavley’s Order directly conflicts with Miller-

El, because it truncates the COA standard, and the evi-

dence presented in support of the specific allegations is

clearly sufficient to convince a reasonable jurist (1) “that

the issues presented [are] ‘adequate to deserve encour-

agement to proceed further’” and (2) that it is debatable

that the district court was correct in its procedural rulings.

The “no evidence” finding by the Fifth Circuit is a pretext

to deny relief, a premature use of the merits, and an

insincere look at the merits. The Court had no jurisdiction

to make the finding.

* The newly discovered evidence that is raised in a Rule 33(b1)

motion must be that which “will probably produce an acquittal.” United

States v. Pena, 949 F.2d 751, 758 (5th Cir. 1991). Evidence that goes to

structural error (actual bias of a trial judge) or only to the prejudice

formulation under Strickland is not relevant to a Rule 33(b)(1) motion,

although perfectly suited for a Section 2255 Motion.

Runyan proved what was needed for COA. Proce-

durally, the record clearly shows there was no default by

trial or appeal counsel] in raising the issue of the trial

court’s bias. On the merits, too, the record provides serious

evidence of trial court bias. Runyan’s claims that the trial

court was actually biased and that trial counsel (Holder)

was ineffective for causing that bias are well grounded,

bearing no speculation. They are made in good faith and

are proven way beyond any “absence of frivolity” that

could be conceived as a very minimum ground for COA.

Miller-El, 537 U.S. at 338. The issues certainly were

adequate for encouragement to proceed further.

2. The Fifth Circuit Court of Appeals’ decision

directly conflicts with this Court’s rule, stated in

Harris v. Nelson, 394 U.S. 286, 291 (1969), requir-

ing that Section 2255 Movants be given a fair

opportunity to develop evidence in support of

~ their petition.

This Court has affirmed that “[t]here is no higher duty

of a court, under our constitutional system, than the

careful processing and adjudication of petitions for writs of

habeas corpus.” Harris v. Nelson, 394 U.S. 286, 291 (1969).

Judge Reavley’s Order conflicts with that duty of care by

preventing Runyan from having a fair opportunity to

“develop[] the evidence needed to support in necessary

detail the facts alleged in his petition” and creating for

him, instead, a “procedural morass.” Jd. Runyan has made

very specific allegations, based upon clear record evidence,

that deserve further development:

[Wlhere specific allegations before the court show

reason to believe that the petitioner may, if the

facts are fully developed, be able to demonstrate

that he is confined illegally and is therefore enti-

tled to relief, it is the duty of the court to pro-

vide the necessary facilities and procedures

for an adequate inquiry.

Harris, 394 U.S. at 300 (empnasis added), In addition to

conflicting with Miller-El, Judge Reavley’s Order directly

conflicts with Harris. Judge Reavley’s standard for COA is

unfairly and erroneously truncated, preventing a proper

finding that the issues deserve encouragement to proceed

further. An evidentiary hearing is usually required for

further proceeding when the Section 2255 Motion “states a

claim based on matters outside the record or events

outside the courtroom.” United States v. Burrows, 872 F.2d

915, 917 (9th Cir. 1989). “The district court may deny a

Section 2255 Motion without an evidentiary hearing only

if the movant’s allegations, viewed against the record,

either do not state a claim for relief or are so palpably

incredible or patently frivolous as to warrant summary

dismissal.” Jd.

It is disingenuous to find that “no evidence” supports

issues raised, when a mandatory rule of this Court would

have required the trial court to allow development that

could have led to relief, and the very thing of which the

petitioner has complained is that the trial court unfairly

blocked that development. Runyan “set forth specific

allegations of fact” in support of each of his claims. United

States v. Edwards, 442 F.3d 258, 268 n.10 (5th Cir. 2006),

There was nothing speculative nor inconcrete about what

he alleged. Jd. It is impossible to say that Mr. Holder’s

comments to the trial judge were not the sort that would

bias a reasonable judge. It is unreasonable to ignore the

trial court’s own suppression of the in camera colloquy as

evidence of bias. There is no speculation about what was

said in the colloquy; there is no speculation as to the

additional record facts supporting a finding that the trial

court crossed the forbidden line into advocacy, because of

what it heard in the colloquy.’

"In Edwards, the Fifth Circuit rejected a Giglio claim that the

Government and a judge had colluded during an in camera colloquy to

suppress a secret deal with a cooperating witness. The Fifth Circuit

(Continued on following page)

CONCLUSION

Runyan demonstrated a due process violation by

“establish{ing] that a genuine question exists concerning

[the trial court’s] impartiality.” Bigby v. Dretke, 402 F.3d

551, 559 (5th Cir. 2005) (citing Liteky, 510 U.S. at 552).

Runyan alleged “bias sufficient to reverse.” It was an

based its decision on the significant, contrary evidence in the record

that supported the non-existence of a deal, and on the paucity of

evidence that the petitioner raised of its existence: “Appellants offer no

support for this serious allegation other than pointing to a short, off-

the-record chambers conference between the judge and the attorneys

that happened during [the witness’) arraignment and speculating that

something illicit occurred during the recess.” Edwards, 442 F.3d at 266.

Runyan’s case directly conflicts with Hdwards. Runyan has fully

presented the contents of his colloquy and they clearly prove that

“something illicit” occurred - unethical betrayal of confidence and

extremely harmful conveyance of speculation about the defendant’s

thought processes and intentions to the Court prior to trial. The

subsequent record — the Court’s decisions not to recuse itself (at any

point in the course of the case) and not to inform remaining trial

counsel or Runyan of the contents of the colloquy, the Court’s abusive

treatment of remaining trial counsel, the Court’s unfounded, open

expression of doubt in remaining trial counsel’s candor before the

Court, and the Court’s highly prejudicial, erroneous procedural

decisions (at trial and after) ~ is clear evidence of bias. On the other

hand, also unlike Edwards — wherein, for example, testimony was given

by two attorneys who denied the charge of colluding in a secret deal -

there is no evidence that the judge was not unfairly biased by Holder’s

clandestine colloquy. To deny a hearing for further development of the

claims under such circumstances is fundamentally unfair.

* Mitchell v. Sirica, 502 F.2d 375, 380 (1974) (MacKinnon, J.,

dissenting). Such bias was described in a Sixth Circuit case as follows:

“Whether unconsciously or otherwise, (the trial judge) failed from the

start of the trial to view this case with the impartiality between

litigants that the defendants were entitled to receive. His active

participation in the case and in the questioning of witnesses exceeded

what was reasonably necessary to obtain a clear understanding of what

their testimony was and fully justifies appellants’ complaint that at

times ‘he, figuratively speaking, stepped down from the bench to

assume the role of advocate for the plaintiff.’” Knapp v. Kinsey, 232

F.2d 458, 467 (6th Cir. 1956).

abuse of discretion for the district court to deny- Runyan

an evidentiary hearing that would allow him to develop all

of the claims related to the court’s bias. United States v.

Auten, 632 F.2d 478, 482 (5th Cir. 1980). It was an abuse of

the COA process for the Fifth Circuit to issue a premature

merits ruling in order to avoid granting COA on proce-

dural and substantive grounds and, probably, to avoid

having to remand the case to the district court level for an

evidentiary hearing before a different judge.

PRAYER FOR RELIEF

PREMISES CONSIDERED, Petitioner Runyan respect-

fully prays that this Court grant this petition for certiorari,

vacate the Fifth Circuit’s denial of COA, and remand his

case to the Fifth Circuit for a proper consideration of his

application for COA..

Respectfully submitted,

CLIFTON L. “SCRAPPY” HOLMES

Counsel of Record

Tex. Bar No. 09907000

110 West Methvin Street

Longview, Texas 75601

903-758-2200 (Telephone)

903-758-7864 (Fax)

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10458

UNITED STATES OF AMERICA

Plaintiff-Appellee

ROBERT BEAM RUNYAN

Defendant-Appellant

Appeal from the United States District Court for the

Northern District of Texas, San Angelo

(Filed Aug. 1, 2006)

Before JOLLY and OWEN, Circuit Judges.”

PER CURIAM:

A member of this panel previously denied motion for

certificate of appealability. The panel has considered Appel-

lant’s motion for a panel rehearing as a motion for reconsid-

eration. IT IS ORDERED that the motion is DENIED.

* Judge Reavley was a member of the original panel, but did not

participate in this decision.

* This order is being entered by a quorum of this court pursuant to

28 U.S.C. Sect. 46(d).

App. 2

- IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10458

USDC No. 6:04-CV-37

USDC No. 6:99-CR-47

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT BEAM RUNYAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(Filed Jun. 12, 2006)

ORDER:

Robert Beam Runyan, federal prisoner # 33401-077,

seeks a certificate of appealability (COA) to appeal the

denial of his 28 U.S.C. § 2255 motion. Runyan filed the

§ 2255 motion to challenge his convictions for sexual

exploitation of children and for receipt and possession of

child pornography.

To obtain a COA, Runyan must make “a substantial

showing of the denial of a constitutional right.” § 2253(c)(2).

For claims denied on procedural grounds, this requires

Runyan to show “that jurists of reason would find it

debatable whether the petition states a valid claim of the

App. 3

denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was

correct in its procedural ruling.” For claims denied on their

merits, Runyan must “demonstrate that reasonable jurists

would find the district court’s assessment of the constitu-

tional claims debatable or wrong.” Slack v. McDaniel, 529

U.S. 473, 484 (2000).

Runyan argues that: (1) the district court was actually

biased against him at trial; (2) the district court abused its

discretion by failing to recuse itself from Runyan’s § 2255

motion; (3) the district court abused its discretion by

failing to recuse itself from his Fed. R. Civ. P. 59(e) motion;

(4) his counsel, Floyd Holder, rendered ineffective assis-

tance by disclosing to the district court that Runyan

intended to testify falsely; (5) his counsel, J.W. Johnson,

rendered ineffective assistance by failing to pursue a plea

agreement; and, (6) the district court erred in denying his

§ 2255 motion without conducting an evidentiary hearing.

A review of this record reflects no evidence of bias or

impropriety of the district judge, no evidence of ineffec-

tiveness of counsel, and no error in denying an evidentiary

hearing.

Runyan has failed to make the showing required to

obtain a COA. See Slack, 529 U.S. at 484. Accordingly,

Runyan’s COA motion is DENIED.

/s/ Thomas M. Reavley

THOMAS M. REAVLEY

UNITED STATES CIRCUIT JUDGE

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

ROBERT BEAM RUNYAN,

Movant, CIVIL ACTION NO.

)

v. ) 6:04-CV-037-C

UNITED STATES OF AMERICA, (6:99-CR-047-C)

Respondent. )

ORDER

(Filed Mar. 3, 2005)

Movant, Robert Beam Runyan (“Runyan”), filed a

Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody, together

with supporting exhibits. The Government filed a re-

sponse, together with relevant records, and Runyan filed a

reply.

BACKGROUND

Runyan was charged in a superseding indictment on

October 13, 1999, with two counts of sexual exploitation of

children, in violation of 18 U.S.C. § 2251 (Counts 1 and 2);

one count of distribution of child pornography, in violation

of 18 U.S.C. § 2252A(a)(2) (Count 3); one count of receipt of

child pornography, in violation of 18 U.S.C. § 2252A(a)(2)

(Count 4); one count of possession of child pornography, in

violation of 18 U.S.C. § 2252A(5)(B); and one count of

forfeiture, in violation of 18 U.S.C. § 982 (Count 6). Counts

2 and 6 were dismissed on April 14, 2000.

App. 5

A jury trial commenced on April 17, 2000, and Runyan

was convicted on April 21, 2000, on Counts 1, 3, 4, and 5.

On July 28, 2000, Runyan was sentenced to a term of 240

months’ imprisonment on Count 1; 60 months’ imprison-

ment on Count 3, to run consecutive to Count 1; and 180

months’ imprisonment on each of Counts 4 and 5, to run

concurrently to each other and with Count 1. Runyan’s

total aggregate sentence was 300 months’ imprisonment

with a three-year term of supervised release.

Runyan filed a notice of appeal on July 31, 2000,

“contending that: (1) the trial court erred in failing to

suppress the evidence obtained directly and indirectly

from the pre-warrant police searches; (2) there was insuf-

ficient evidence introduced at trial to support the inter-

state commerce element of each of the four charges; (3) the

trial court erred in refusing to order the government to

produce [a] computer and in refusing to conduct an in

camera review of evidence on [a] computer that Runyan

contends was exculpatory; (4) the trial court erred in

admitting evidence that Runyan refused to consent to the

search of the desktop computer; and (5) the trial court

erred in not grouping all the counts of his conviction in the

sentencing determination.” United States v. Runyan, 275

F.3d 449 (5th Cir. 2001).

While Runyan’s appeal was still pending before the

United States Court of Appeals for the Fifth Circuit,

Runyan filed a Motion for New Trial on August 20, 2001,

alleging newly discovered evidence. Runyan asked the

appellate court to abate his pending appeal for a limited

remand to the District Court for a hearing on his motion

for new trial. The Fifth Circuit heard oral arguments on

September 4, 2001, and the Government filed its response

to the motion for new trial on September 7, 2001. The

App. 6

District Court denied the motion for new trial on Septem-

ber 7, 2001. Runyan filed a notice of appeal on September

14, 2001, appealing the denial of his motion for new trial.

Runyan’s pending appeals were consolidated for hearing

by the Fifth Circuit, and on December 10, 2001, the Fifth

Circuit ordered a limited remand to the District Court for

a hearing to resolve one of Runyan’s Fourth Amendment

claims. See United-States v. Runyan, 275 F.3d 449. After

conducting an evidentiary hearing, the District Court

entered findings of fact and the case was returned to the

Fifth Circuit.

On April 18, 2002, the Fifth Circuit affirmed the

District Court’s denial of Runyan’s motion for new trial,

affirmed Runyan’s convictions on Counts 1, 4, and 5;

reversed the conviction as to Count 3; and vacated Run-

yan’s sentence. See United States v. Runyan, 290 F.3d 223

(5th Cir. 2002). The case was remanded to the District

Court for re-sentencing on Counts 1, 4, and 5. Mandate

issued on May 28, 2002.

Runyan filed a petition for writ of certiorari sn August

12, 2002, which was denied by the United States Supreme

Court on October 7, 2002.

On August 30, 2002, Runyan was re-sentenced to 240

months’ imprisonment on Count 1 and 180 months’ im-

prisonment on each of Counts 4 and 5, to run concurrently

with each other and with Count 1. Runyan’s total aggre-

gate sentence was 240 months’ imprisonment, to be

followed by a three-year term of supervised release.

Runyan filed a notice of appeal on September 3, 2002,

appealing his sentence following remand. In this appeal,

Runyan argued that “(1) if § 2G2.2 was applied based on

his conviction for receipt of child pornography, it was error,

App. 7

because § 2G2.4, not § 2G2.2, should apply to receipt of

child pornography convictions; (2) sentence of 180 months’

imprisonment for possession of child pornography (Count

5) was above the statutory maximum of five years; and (3)

the enhancement of his offense level under § 2G2.2(b)(2)

and (5) for distributing child pornography and use of a

computer, was error.” United States v. Runyan, No. 02-

10995 (5th Cir., Mar. 7, 2003). On March 7, 2003, the

United States Court of Appeals for the Fifth Circuit

affirmed the sentence imposed at re-sentencing.’ Mandate

issued on March 31, 2003. Runyan did not file a petition

for writ of certiorari to the United States Supreme Court.

On June 4, 2004, Runyan filed his § 2255 motion

challenging his conviction and sentence.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, there are four grounds

upon whith Runyan may move to have his federal sen-

tence vacated, corrected, or set aside:

(1) the sentence was imposed in violation of the Con-

stitution or laws of the United States;

(2) the court was without jurisdiction to impose the

sentence;

(3) the sentence exceeds the statutory maximum

sentence: or

(4) the sentence is otherwise subject to collateral at-

tack.

* Although discussing the merits of all three issues, the Fifth

Circuit also found that Runyan had waived issues (2) and (3) because

he could have raised those issues in his first appeal but did not.

App. 8

28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555

(5th Cir. 1996). Relief under § 2255 is thus reserved “for

transgressions of constitutional rights and for a narrow

range of [non-constitutional] injuries that could not have

been raised on direct appeal and would, if condoned, result in

a complete miscarriage of justice.” United States v. Vaughn,

955 F.2d 367, 368 (5th Cir. 1992). Non-constitutional issues

are cognizable under § 2255 only if the error could not have

been raised on direct appeal. United States v. Shaid, 937

F.2d 228, 232 n. 7 (5th Cir. 1991) (en banc).

ISSUES

In his § 2255 motion, Runyan raises three claims for

relief —

(1) he was tried by a judge harboring actual

bias against him in violation of the due

process clause of the Fifth Amendment to

the Constitution of the United States (Judi-

cial Bias and Prejudice);

(2) he was denied his right to effective assis-

tance of trial counsel (Floyd Holder), as

guaranteed by the Sixth and Fourteenth

Amendments to the Constitution of the

United States, by trial counsel’s in camera,

ex parte communication with the court,

causing the court to be biased against him

(Ineffective Assistance of Counsel); and

(3) he was denied his right to effective assistance

' of trial counsel (J. W. Johnson), as guaran-

teed by the’ Sixth and Fourteenth Amend-

ments to the Constitution of the United

States, by trial counsel’s failure to diligently

and timely pursue a very favorable plea

App. 9

agreement (Ineffective Assistance of Coun-

sel).

JUDICIAL BIAS AND PREJUDICE

Runyan alleges that the Court was biased against

him, resulting in a denial of due process. He alleges that

the Court (1) interrupted Runyan’s counsel numerous

times “with sua sponte instructions to move the case

along,” (2) admonished counsel that he “was pursuing

matters that pertained to no issues in the case,” (3) made

“degrading and threatening remarks” towards Runyan’s

counsel “(openly suggesting that counsel was trying to

defraud the Court and jury),” and (4) made “unfair and

prejudicial evidentiary rulings.” Runyan also complains

about the Court overruling objections, ordering counsel

about and telling him to move on and change subjects,

admitting prejudicial evidence, allowing the Government

to assert that Runyan refused to consent to search of a

computer, and assisting the Government in keeping trial

counsel from having access to exculpatory evidence.

Runyan argues that the basis for the Court’s bias and

prejudice was an in camera meeting just prior to trial,

held ex parte, between the Court and Floyd Holder, one of

Runyan’s attorneys, wherein Holder asserted that “Run-

yan intended to commit fraud upon this Court and the

”

jury.

At 8:15 a.m. on April 17, 2000, the morning of trial,

one of Runyan’s attorneys, Floyd Holder, appeared before

* Admonishments and comments to counsel were made outside the

presence of the jury.

App. 10

the Court in chambers, ex parte and in camera. Mr. Holder

told the Court:

I was employed by Mr. Runyan last fall after he

had employed Mr. Robert Smith, and Mr. Smith

and Mr. Meacham had reached an agreement for

a plea related to count four of the indictment. I

reviewed the facts with Mr. Runyan. Mr.

Meacham had a deadline for notifying him if the

plea was acceptable. I notified him the plea was

acceptable to count four. Count four involves re-

ceiving child pornography.

Upon receipt of the plea papers, however, there -

were some stipulations about aggravating cir-

cumstances that we could not agree to.

Subsequently, I notified the Court Administrator

that we wanted to interchange our plea and have

a new arraignment and plead to counts four and

five of the indictment as guilty and plead not

guilty to counts one, two, and three. Before that

could be scheduled, the indictment was re-

indicted to add count six, which is a forfeiture

count.

At about this time Mr. Runyan hired J. W. John-

son to represent him. Since the date Mr. Johnson

was employed, which was almost immediately af-

ter the forfeiture count was entered, I have had

no contact with the client. I have been helping

Mr. Johnson with federal rules and procedural

questions and questions of law.

The plea that was arrived at and scheduled to be

given last Tuesday was not acceptable to the

Court, and we began to get ready for trial. I be-

came concerned about the shape that the evi-

dence appeared to be taking, and expressed those

concerns to Mr. Johnson stating that they were

App. 11

inconsistent with the facts that I believed to be. I

did advise Mr. Johnson that if Mr. Runyan took

the witness stand and related facts consistent

with what I perceived the defense to be shaping

up to be, that I would have an affirmative duty to

advise the Court that a fraud was being commit-

ted on the Court, and my services had been used

to fabricate this fraud, and urged with the ut-

most suasion that he urge Mr. Runyan not to tes-

tify, because should he do so, I would have no

question or no option but to notify the Court.

I was advised Saturday afternoon that I was mis-

taken as to the facts, and that Mr. Runyan did

intend to testify. I advised Mr. Johnson I would

have no option but to ask the Court to let me

withdraw, and urged him once again not to let

Mr. Runyan testify, and that if he did I would

have no option but to come to the Court and ex-

plain exactly what the facts were that I thought

to be, and I would ask the Court at this time to

permit me to be excused. And should the defense,

despite my exhortations, decide to put Mr. Run-

yan on, I would come down and relate to the

Court or to — I would just simply try to put things

right.

The Court permitted Holder to withdraw.

At 9:00 a.m. on April 17, 2000, the Court held a

hearing on Runyan’s motion to suppress evidence. Runyan

appeared with his attorney, J. W. Johnson, along with the

Government's attorneys. Thereafter, voir dire began at

1:30 p.m. and the-jury was seated and advised to report

back at 8:30 a.m. the following morning for trial. Trial

began on April 18 and continued through April 21. The

jury returned a verdict of guilty on Counts 1, 3, 4 and 5.

App. 12

Attorney Holder did not appear in Court for any of the

proceedings. Runyan did not testify.

Runyan alleges that

Mr. Johnson has related to undersigned

counsel that he was unaware that Mr. Holder

intended to communicate with this Court ex

parte and in chambers (sic), let alone the poten-

tial substance of that communications. While Mr.

Johnson learned on April 17, 2000, that Mr.

Holder had been in this Court’s offices and had

been allowed to not to participate in the trial, Mr.

Johnson did not learn of the substance of Mr.

Holder’s comments to this Court until on or

about March 15, 2001, when a copy of the ex

parte, in chambers colloquy was obtained, as re-

flected by the “fax header” ....

[emphasis added].

Runyan did not raise his claim of judicial bias and

prejudice on appeal. His appeal was pending on March 15,

2001, the date Runyan claims Johnson learned the sub-

stance of Holder’s comments to the Court on April 17,

2000. His appellate brief was filed the next day on March

16, 2001. According to the Fifth Circuit’s docket sheet,

Runyan did not seek permission to supplement or amend

his appellate brief. The Fifth Circuit rendered its opinion

*In his reply to the Government's response, Runyan again

mentions “Mr. Johnson’s assertions, as related to undersigned counsel.”

It is noted that Runyan has not submitted a sworn affidavit from Mr.

Johnson as to his knowledge surrounding Holder’s communications

with the Court and there is no evidence before this Court as to John-

son’s knowledge as to the substance of Holder’s comments, nor is there

any evidence to contradict Holder’s comments to the Court during the

in camera meeting as to what he had told Johnson.

App. 13

on Runyan’s first appeal on April 18, 2002. Further,

Runyan did not raise this issue in his motion for new trial,

which was filed while his first appeal was pending. Fur-

ther, Runyan did not claim judicial bias and prejudice

before his re-sentencing on August 30, 2002, which oc-

curred approximately 18 months after he allegedly learned

the substance of the comments giving rise to his claims of

judicial bias and prejudice. Further, he did not raise this

issue on his second appeal.*

Although the Fifth Circuit affirmed Runyan’s re-

sentencing on March 3, 2003, and mandate issued on

March 31, 2003, Runyan did not file his § 2255 motion

until June 4, 2004.°

In Liljeberg v. Health Services Acquisition Corp., 486

U.S. 847, 868 (1988), the Supreme Court ruled that a

collateral attack regarding the appearance of impropriety

was warranted “unless it can be said that [the party

claiming disqualification] did not make a timely request

for relief.” Although-Liljeberg was a civil case, the timeli-

ness of the challenge has been noted in the criminal

context. See United States v. Rogers, 119 F.3d 1377, 1382

(9th Cir. 1997); United States v. Cerceda, 172 F.3d 806,

813 (llth Cir. 1999) (noting, but not considering, the

timeliness of the motions because the Government failed

to raise timeliness as an issue).

* In his second appeal, the appellate court noted that Runyan has

raised two issues which were rejected because they had not been raised

in his first appeal.

* Runyan did not file a petition for writ of certiorari after his

second appeal, so his conviction and sentence became final on June 30,

2003, 90 days after mandate was issued by the Fifth Circuit.

App. 14

The teaching we derive from Liljeberg is that

appearance of impropriety may be raised on col-

lateral attack only if asserted promptly upon

learning the facts alleged to warrant recusal

and may not be raised collaterally if the oppor-

tunity to do so existed at a time when direct re-

view was available. It is especially appropriate

to apply that rule to an attempted collateral at-

tack on a criminal judgment because of the

usual rule that in criminal cases, a collateral at-

tack may not do service for an appeal. Absent

exceptional circumstances, a non-constitutional

and non-jurisdictional claim may not be raised

collaterally under section 2255 where it could

have been, but was not, raised on direct appeal.

Hardy v. United States, 878 F.2d 94, 97 (2d Cir. 1989)

(internal quotations and citations omitted).

Runyan’s judicial bias and prejudice claim alleging the

appearance of impropriety is untimely.

Alternatively, Runyan has failed to show an appear-

ance of impropriety.

“Most matters relating to judicial disqualification [do]

not rise to a constitutional level.” Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 820 (1986). The issue before the

Court is “whether there was an appearance of impropriety

which rose to the level of a ‘fundamental defect’ resulting

in ‘a complete miscarriage of justice.’” United States v.

Couch, 896 F.2d 78, 81 (5th Cir. 1990). “Absent that level

of severity, the claim of an appearance of impropriety is

not cognizable under 28 U.S.C. § 2255.” Jd.

The Supreme Court in Liteky v. United States, 510

U.S. 540, 555-56 (1994), found:

App. 15

First, judicial rulings alone almost never consti-

tute a valid basis for a bias or partiality motion.

In and of themselves (i.e., apart from surround-

ing comments or accompanying opinion), they

cannot possibly show reliance upon an extrajudi-

cial source; and can only in the rarest circum-

stances evidence the degree of favoritism or

antagonism required (as discussed below) when

no extrajudicial source is involved. Almost in-

variably, they are proper grounds for appeal, not

for recusal. Second, opinions formed by the judge

on the basis of facts introduced or events occur-

ring in the course of the current proceedings, or

of prior proceedings, do not constitute a basis for

a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that

would make fair judgment impossible. Thus, ju-

dicial remarks during the course of a trial that

are critical or disapproving of, or even hostile to,

counsel, the parties, or their cases, ordinarily do

not support a bias or partiality challenge. They

may do so if they reveal an opinion that derives

from an extrajudicial source; and they will do

so if they reveal such a high degree of favoritism

or antagonism as to make fair judgment impos-

sible.... Not establishing bias or partiality,

however, are expressions of impatience, dissatis-

faction, annoyance, and even anger, that are

within the bounds of what imperfect men and

women, even after having been confirmed as fed-

eral judges, sometimes display. A judge’s ordinary

efforts at courtroom administration - even a

stern and short-tempered judge’s ordinary efforts

at courtroom administration — remain immune.

[emphasis in original] [internal citations omitted].

App. 16

“*{E)xpressions [by the Court] of impatience, dissatis-

faction, annoyance and even anger’ do not establish bias or

partiality.” Andrade v. Chojnacki, 338 F.3d 448, 462 (5th

Cir. 2003) (quoting Liteky v. United States, 510 U.S. 540,

555-56 (1994)). See United States v. Landerman, 109 F.3d

1053, 1066 (5th Cir. 1997) (affirming denial of motion to

recuse where the court allowed “the Government more

leeway during its questioning and did interrupt defense

counsel’s questioning more often than the Government’s

questioning”); Garcia v. Woman’s Hosp. of Texas, 143 F.3d

227, 230 (5th Cir. 1998) (affirming denial of motion to

recuse where the court made unflattering comments about

plaintiff's ability to prove her case); United States v. Gray,

105 F.3d 956, 964-65 (5th Cir. 1997) (court’s active partici-

pation in and strict control of direct and cross-examination

did not create appearance of impropriety; trial judges have

wide latitude to impose reasonable limits on questioning;

confrontation clause does not guarantee opportunity for

cross-examination in whatever way or to whatever extent

defendant wishes).

Alternatively, Runyan’s claim is procedurally barred

because he did not raise it in the trial court, on direct

appeal of his conviction and sentence, or on direct appeal

after re-sentencing. Runyan may not raise this issue for

the first time on collateral review without showing both

cause for his procedural default and actual prejudice.

United States v. Shaid, 937 F.3d 228, 232 (5th Cir. 1991);

United States v. Frady, 456 U.S. 152, 168 (1982). Runyan

allegedly learned of the comments made by Holder while

his direct appeal was pending, and prior to the filing of his

appellate brief. He did not raise the issue when the trial

court was considering his motion for new trial, nor did he

raise the issue prior to re-sentencing or on his appeal of

App. 17

the re-sentence. Runyan has failed to show cause and

prejudice.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Supreme Court, in Strickland v. Washington, 466

U.S. 668, 687 (1984), established a two-prong standard for

ineffective-assistance-of-counsel claims. First, Runyan

must demonstrate that his counsel’s performance was

deficient and, second, that the deficient performance

prejudiced the defense. To show that the performance was

deficient, Runyan must show that “counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Jd.

To show prejudice, Runyan must show that his counsel’s

“errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Jd. Deficient per-

formance will be found to be prejudicial only upon a

showing that, but for counsel’s errors, there is a reason-

able probability that the final result would have been

different and-that confidence in the reliability of the

verdict is undermined. Lockhart v. Fretwell, 506 U.S. 364,

369 (1993); Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir.

1994).

“An error of counsel, even if professionally unreason-

able, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judg-

ment.” Strickland, 466 U.S. at 694. Rather, it must be

determined whether “there is a reasonable probability that

counsel’s error affected the outcome of the trial.” Jd. at 691.

“A reasonable probability need not be proof by a prepon-

derance that the result would have been different, but it

must be a showing sufficient to undermine confidence in

App. 18

the outcome.” Soffar v. Dretke, 368 F.3d 441, 478 (5th Cir.

2004).

A defendant must show “actual prejudice” as a result

of his counsel's deficient performance. Moody v. Johnson,

139 F.3d 477, 482 (5th Cir. 1998). Runyan is required to

show “that the attorney’s errors were so deficient as to

render the verdict fundamentally unfair or unreliable.”

Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). This

“performance inquiry” is to be made applying a reason-

ableness standard; i.e., was counsel’s assistance reason-

able under all the circumstances, making the assessment,

not in hindsight, but evaluating the conduct from counsel’s

perspective at the time of the conduct. Thus, the reviewing

court is to be highly deferential] in scrutinizing counsel’s

performance. Strickland, 466 U.S. at 688-89.

“The failure to prove either deficient performance or

actual prejudice forecloses an ineffective assistance claim.”

Green v. Johnson, _160 F.3d 1029 (5th Cir. 1998), cert.

denied, 525 U.S. 1174 (1999). See Goodwin v. Johnson, 132

F.3d 162, 174 (5th Cir. 1997) (stating that the presence or

absence of prejudice at either trial or appellate level

hinges upon the fairness of the trial and the reliability of

the verdict). It is not necessary, however, for a district

court to address both requirements of the conjunctive

Strickland standard when addressing an _ineffective-

assistance claim; such a claim may be disposed of solely on

a petitioner’s failure to meet either requirement. Amos v.

Scott, 61 F.3d 333, 348 (5th Cir. 1995).

A petitioner must affirmatively prove and not merely

allege prejudice. Mangum v. Hargett, 67 F.3d 80, 84 (5th

Cir. 1995); Deville v. Whitley, 21 F.3d 654, 659 (5th Cir.

1994). See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir.

App. 19

1994) (stating that the Fifth Circuit requires an apprecia-

ble showing of prejudice).

Prejudice will be presumed in a limited number of

cases. These include: (1) “the complete denial of counsel,”

such as “if the accused is denied counsel at a critical stage

of his trial;”-(2) situations in which “counsel entirely fails

to subject the prosecution’s case to meaningful adversarial

testing;” and (3) “on some occasions when although coun-

sel is available to assist the accused during trial, the

likelihood that any lawyer, even a fully competent one,

could provide effective assistance is so small that a pre-

sumption of prejudice is appropriate without inquiry into

the actual conduct of the trial.” United States v. Cronic,

466 U.S. 648, 659-60 (1984). “A constructive denial of

counsel occurs in only a very narrow spectrum of cases

where the circumstances leading to counsel’s ineffective-

ness are so egregious that the defendant was in effect

denied any meaningful assistance at all.” Gochocoa uv.

Johnson, 238 F.3d 278, 284 (5th Cir. 2000).

Where counsel provides “some meaningful assistance,”

the petitioner must prove prejudice. Craker v. McCotter,

805 F.2d 538, 543 (5th Cir. 1986).

Conclusory allegations unsupported by any specific

facts do not merit a federal court’s attention. Ross uv.

Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983); Koch uv.

Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (“mere conclu-

sory allegations on a critical issue are insufficient to raise

_ a constitutional claim”); Kinnamon v. Scott, 40 F.3d 731,

735 (5th Cir. 1994) (finding “speculation” of ineffective

assistance to be no basis for habeas relief).

“(T]he presence or absence of prejudice, both with

respect to claims of ineffective assistance of counsel at the

App. 20

trial and appellate levels, hinges upon the fairness of the

trial and the reliability of the judgment of conviction

resulting therefrom.” Goodwin v. Johnson, 132 F.3d at 174.

(1) Floyd Holder

Runyan argues that attorney Holder rendered ineffec-

tive assistance of counsel because he had an ex parte, in

camera, meeting with the Court on April 17, 2000, the

morning of trial, wherein Holder conveyed to the Court

that it was his belief that Runyan intended to commit

fraud upon the Court.° Runyan alleges that this revelation

caused the Court to be “manifestly prejudiced” against

him. 2

Runyan argues that “Holder breached his duties to

protect attorney-client privilege and be a zealous advocate

for his client by telling this Court his opinion about Run-

yan’s possible testimony which was gleaned through the

confidential process of communicating with his client and

other trial counsel.”

The Supreme Court has noted that there is an “impor-

tant limitation on a defendant’s right to assistance of

counsel: Counsel ethically cannot assist his client in

presenting what the attorney has reason to believe is false

testimony.” United States v. Grayson, 438 U.S. 41, 54

(1978); United States v. Litchfield, 959 F.2d 1514, 1518

(10th Cir. 1992).

“Under the Strickland standard, breach of an ethical

standard does not necessarily make out a denial of the

* The transcript of the in camera colloquy is set forth hereinabove

in the discussion of Runyan’s judicia! bias and prejudice claim.

App. 21

Sixth Amendment guarantee of assistance of counsel.” Nix

v. Whiteside, 475 U.S. 157, 165 (1986). “Although counsel

must take all reasonable lawful means to attain the

objectives of the client, counsel is precluded from taking

steps or in any way assisting the client in presenting false

evidence or otherwise violating the law.” Id. at 166.

“Whatever the scope of a constitutional right to testify, it is

elementary that such a right does not extend to testifying

falsely.” Id, at 173 [emphasis in original].

“For defense counsel to take steps to persuade a

criminal defendant to testify truthfully, or to withdraw,

deprives the defendant of neither his right to counsel nor

the right to testify truthfully.... When an accused pro-

poses to resort to perjury or to produce false evidence, one

consequence is the risk of withdrawal of counsel.” Jd. at

174.

“The touchstone of an ineffective-assistance claim is

the fairness of the adversary proceeding, and in judging

prejudice and the likelihood of a different outcome, a

defendant has no entitlement to the luck of a lawless

decisionmaker.” Lockhart v. Fretwell, 506 U.S. 364, 370

(1993) [internal quotations and citations omitted]. “Unre-

liability or unfairness does not result if the ineffectiveness

of counsel does not deprive the defendant of any substan-

tive or procedural right to which the law entitles him.” Jd.

at 372.

“(T]he Supreme Court in Nix v. Whiteside re-affirmed

the duty of counsel not to participate in perjury and also

approved an explicit statement to the court of the fact that

perjury is about to be committed.” United States v. Henkel,

799 F.2d 369 (7th Cir. 1986) [internal citation omitted].

App. 22

“(T]he responsibility of an ethical lawyer, as an officer

of the court and a key component of a system of justice,

dedicated to a search for truth, is essentially the same

whether the client announces an intention to bribe or

threaten witnesses or jurors or to commit or procure

perjury.” Nix v. Whiteside, 475 U.S. at 174. “In short, the

duty of attorney-client privilege silence is relieved when

such silence would result in false testimony being pre-

sented.” United States v. Henkel, supra.

Runyan was represented by hired counsel at all times

during his trial. Attorney Holder did not make an appear-

ance during the trial and the jury was not aware of

Holder’s withdrawal prior to trial. Runyan did not testify.

As the Court has previously found, Runyan has failed to

show an appearance of impropriety, bias or prejudice on

the part of this Court based upon Holder’s ex parte, in

camera meeting with the Court and Holder’s withdrawal

as counsel.

Runyan has failed to show that Holder’s actions were

deficient. Even if Holder’s actions could be deemed to have

been deficient, Runyan has failed to show that “there is a

reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have been

different.” Therefore, Runyan has failed to establish the

prejudice prong of Strickland. See Nix v. Whiteside, 475

USS. at 175.

(2) J. W. Johnson

Runyan alleges that he was denied effective assis-

tance of counsel when his trial counsel J. W. Johnson

failed to diligently and timely pursue a very favorable plea

agreement. He claims that Johnson failed to pursue the

App. 23

plea process that had been initiated and developed by

attorney Holder prior to Johnson be: vming lead counsel.

The Court has considered the sworn affidavit of

attorney Johnson regarding the plea negotiation process.’

According to Mr. Johnson, Runyan refused the plea

agreement negotiated by Holder prior to Johnson being

hired as lead counsel in November 1999. Thereafter, the

Government was steadfast in its refusal to negotiate a

different plea. On or about April 4, 2000, 13 days before

the scheduled trial, the Government’s attorney and John-

son negotiated a plea agreement wherein Runyan would

plead guilty to Count 5 for possession of child pornogra-

phy, with a range of punishment of 3-5 years to be deter-

mined by the Court, a $20,000 fine, and the dismissal of

all other pending federal and state charges. Attorney

‘Holder advised Johnson that the Court might not be

willing to take a plea “at this late date.” Then, on April 5,

the District Attorney for Coleman County, Texas, advised

that he did not approve the plea bargain and that he

would not dismiss the state charges. However, the next

day, on April 6, the Government’s attorney advised John-

son that the state had agreed to dismiss all charges

pending in Coleman County.’ Johnson received an oral

" Runyan has failed to provide any sworn evidence to rebut

Johnson’s affidavit or to support his claim of ineffective assistance of

counsel.

* The following charges were pending in Coleman County, Texas:

(1) Cause No. 1225 — sexual performance by a child; (2) Cause No. 1226

— sexual performance by a child; (3) Cause No. 1227 — sexual perform-

ance by a child; (4) Cause No. 1228 ~ sexual performance by a child;

(5) Cause No. 1229 ~ sexual performance by a child; (6) Cause No. 1230

— possession/promotion of child pornography; (7) Cause No. 1231 -

sale/distribution/display harmful materials; (8) Cause No. 1232 -

aggravated sexual assault/sexual assault; (9) Cause No. 1233 -

(Continued on following page)

App. 24

confirmation of that agreement from the state’s attorney

on Friday, April 7, 2000, and requested written confirma-

tion. On Monday, April 10, Johnson received a letter from

the Coleman County District Attorney agreeing to dismiss

the state charges if Runyan agreed to plead guilty to

Count 5 and the Government approved the plea bargain.

The Government’s attorney then prepared a written plea

agreement and forwarded a copy to Johnson. Although the

copy of the written plea agreement submitted by Runyan

in support of his § 2255 motion indicates that it had been

signed by the Government’s attorneys, the plea agreement

does not contain the signature of Runyan or Johnson.

According to Johnson, on April 11 the Government’s

attorney informed him that the Court wanted to review

the plea bargain agreement and Johnson called the Court’s

coordinator and related the terms and conditions of the

plea bargain. The parties were later advised that the

Court had rejected the plea agreement. Trial began on

April 17, 2000, as previously scheduled.

“(T}here is no constitutional right to plea bargain.”

Weatherford v. Bursey, 429 U.S. 545, 561 (1977); United

States v. Rankin, 572 F.2d 503, 505 (5th Cir. 1978); United

States v. Lopez, 979 F.2d 1024, 1036 (5th Cir. 1992) (“There

is, however, no constitutional right to a plea bargain, and

the prosecutor has the discretion either to bargain or to go

to trial.”). “It is a novel argument that constitutional rights

are infringed by trying the defendant rather than accept-

ing his plea of guilty.” 429 U.S. at 561. “[T]he successful

indecency with a child; (10) Cause No. 1234 - aggravated assault;

(11) Cause No. 1235 — aggravated assault; (12) Cause No. 1236 -

obscenity; and (13) Cause No. 1237 — sale/distribution/display harmful

materials.

App. 25

negotiation of a plea agreement involves factors beyond

the control of counsel, including the cooperation of his

client, ... as well as the cooperation of the prosecutor, who

has no obligation to offer such an agreement.” United

States v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000).

Runyan has failed to show that attorney Johnson’s

performance was deficient.

To the extent that Runyan attempts to raise an issue

in footnote 10 on page 63 of his § 2255 motion regarding

the Court’s rejection of a plea agreement, his claim would

be procedurally barred because he did not raise the claim

on direct appeal.

CONCLUSION

The Court has reviewed Runyan’s § 2255 motion and

exhibits, the Government’s answer, together with relevant

records, and Runyan’s reply.

Based upon a review of the relevant court records and

the facts and law set forth above, Runyan’s § 2255 motion

is denied.

SO ORDERED.

Dated March 3 , 2005.

/s/ Sam R. Cummings

SAM R. CUMMINGS

United States District Judge

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

ROBERT BEAM RUNYAN, )

)

a ) CIVIL ACTION NO.

v. ) 6:04-CV-037-C

UNITED STATES OF AMERICA, (6:99-CR-047-C)

Respondent. )

JUDGMENT

(Filed Mar. 3, 2005)

For the reasons stated in the Court’s Order of even

date,

It is ORDERED, ADJUDGED, AND DECREED that

Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence by a Person in Federal Custody

is DENIED and the above-styled and -numbered cause is

DISMISSED with prejudice.

Dated March 3 , 2005.

/s/ Sam R. Cummings

SAM R. CUMMINGS

United States District Judge

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