* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 7/29/96 TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. A. LEONARD VARAH, Defendant-Appellant. No. 96-8007 (D.C. No. 94-CV-124-J) (D. Wyoming)

_____________________
ORDER AND JUDGMENT *

_____________________
Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore1 Because we reject Mr. Varah's claims on the merit s and because neither

party raised the issue, we decline to address any e ffect the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 10 4-132, 110 Stat. 1214, may -2- ordered submitted without oral argument.

A. Leonard Varah, appearing pro se and in forma pauperis , appeals the district court's denial of his motion to vacate, se t aside or correct his sentence brought under 28 U.S.C. § 2255. In August of 1987, a jury found Mr. Varah guilty of conspiracy in violation of 18 U.S.C. § 37 1, mail fraud in violation of 18 U.S.C. § 1341 and securities fraud in violation of 15 U.S.C. §§ 77q and 77x. Mr. Varah has previously appeared before this court in connection with this case in two direct appeals, United States v. Varah , 952 F.2d 1181 (10th Cir. 1991); United States v. Varah , No. 87-2320, 1992 WL 186530 (10th Cir. July 30, 1 992), cert. denied, 506 U.S. 1079 (1993), and regarding a Writ of Man damus. Varah v. Honorable Alan B. Johnson, United States District J udge for the District of Wyoming, No. 95-625, slip op. (10th Cir. Sept. 26, 1995).

Mr. Varah raised eleven issues in his § 2255 petiti on. Without holding an evidentiary hearing, the district court entered a d ecision and memorandum denying Mr. Varah's petition. On appeal, Mr. Varahcontends the district court erred in denying his § 2255 petition without holdin g an evidentiary hearing. 1 Wehave on our review of § 2255 petitions. See Lennox v. Evans , No. 96-6041 at 8

(10th Cir. June 24, 1996) (also declining to addres s the Act's effect on § 2255 petitions). -3- affirm the district court's decision.

I Under 28 U.S.C. § 2255: Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the Un ited States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with r espect thereto.

On appeal, "we must first decide whether 'petitione r's allegations, if proved, would entitle him to relief. If so, the district c ourt's summary denial of an evidentiary hearing is reviewed for an abuse of dis cretion.'" Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991) (internal citation omitted). Under the abuse of discretion standard we will not disturb th e district court's decision unless we have "a definite and firm conviction that the lo wer court made a clear error of judgment or exceeded the bounds of permissible choi ce in the circumstances." McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991). We also note we are free to affirm the district court's dec ision on any grounds supported by the record, "even grounds not relied upon by the district court." United States-4-

v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). On appeal Mr. Varah claims the district court erred by denying him a hearing r egarding seven issues. We will address each one in turn.

A. Right to a Speedy Appeal Mr. Varah asserts he deserved an evidentiary hearin g on his claim the delay in his direct appeal denied him his constitutional right to a speedy trial. We agree with Mr. Varah that the nearly five years occurring between his sentencing on August 21, 1987, and July 30, 1992, when his appeal was decided is a long time to wait for a ruling. In order to successfully mak e his claim, however, he must prove the factors outlined in Harris v. Champion , 15 F.3d 1538 (10th Cir. 1994). In Harris we recognized the meaninglessness of an appeal that is inordinately delayed. Id. at 1557-58. To determine whether the delay violate d Mr. Varah's due process rights we must balance four factors:

a. the length of the delay; b. the reason for the delay; c. whether the petitioner asserted his right to a timely appeal; and d. whether the delay prejudiced the petitioner by i. causing the petitioner to suffer oppressive inc arceration pending appeal; or ii. causing the petitioner to suffer constitutiona lly cognizable2Although from the record it appears to have been c aused primarily by the

district court's handling of post-trial motions.

-5- anxiety and concern awaiting the outcome of his or her appeal; or iii. impairing the petitioner's grounds for appeal or his or her defenses in the event of a reversal and retrial. Id. at 1559. We will address each factor. The nearly five years Mr. Varah waited for his appeal to be resolved clearly qualifies as an inordinate delay capable of triggering due process concerns. Because we are no t provided with the reason for the delay 2 we will assume there is not a constitutionally suf ficient justification for the delay. Regarding the third factor, we fail to see any evidence that Mr. Varah contested the delay during his motions; however, be cause every appellant has the right to believe his or her appeal will be dealt wi th in a reasonable time and recognizing that Mr. Varah is appearing pro se, we will not weigh this failure too heavily against him.

Finally, we must decide whether or not the delay pr ejudiced Mr. Varah. Mr Varah claims the delay caused "the deterioration of his mental illness," had a "substantial financial effect ... because of his in ability to obtain meaningful employment during this period," affected his person al life and family and affected his ability to pursue his § 2255 motion. The distr ict court found:-6-

Although defendant Varah was not incarcerated durin g the post-trial proceedings, he contends that he suffered anxiety and distress by virtue of the delay. The Government has noted that , in a sworn statement of the defendant dated September 8, 1992, and submitted to the court in response to the Government's motion to revoke defendant's bond, Varah indicated he was employed b y a private individual for several years as a consultant and as a part-time official. There is no doubt that conviction for cr iminal conduct itself carries a significant stigma, which impacts a defen dant's personal and business life. Here, however, the effect upon the defendant has not been shown to be inordinate or unusual beyond that experienced by others awaiting the outcome of their appeals.
Because he was not incarcerated during the appeal a nd he has not claimed an impairment to his grounds of appeal, Mr. Varah m ust show a constitutionally cognizable anxiety to prevail. In Harris we held:

A petitioner has no reason to be anxious or concern ed about the time it takes to adjudicate an appeal that is w ithout merit. Therefore, to establish prejudice resulting from an xiety, a petitioner must ... assert a colorable state or federal claim that would warrant reversal of the petitioner's conviction or reductio n of sentence to an amount of time less than that taken to adjudicate t he appeal. Id. at 1565. Because Mr. Varah was ultimately unsucce ssful in his appeal he had no reason to be concerned or anxious about the delay and he is therefore unable to meet the prejudice factor. Thus, the district court did not abuse its discretion in denying his right to a speedy appeal claim without a hearing.

B. Denial of Effective Assistance of Counsel In his complaint pursuant to § 2255, Mr. Varah rai sed an ineffectiveness of-7-

counsel claim which the district court denied. Mr. Varah also raised ineffectiveness of counsel on his direct appeal, wh ich we denied, holding "Varah has failed to show that 'there is a reasonable prob ability that, but for counsel's ... errors, the result of the proceeding would have bee n different,' as required by Strickland [ v. Washington , 466 U.S. 668, 694 (1984)]." United States v. Varah , No. 86-00063-01J, 1992 WL 186530, at *4 (10th Cir. July 30, 1992), cert. denied, 506 U.S. 1079 (1993). In United States v. Galloway , 56 F.3d 1239, 1242-43 (10th Cir. 1995), we held: the fact that an ineffectiveness claim is raised an d adjudicated on direct appeal will not procedurally bar an ineffect iveness claim in a proceeding under 28 U.S.C. § 2255, where new reason s are advanced in support of that claim. It should go without say ing that the identical reasons in support of ineffectiveness can not be litigated twice. That is prevented by the doctrine of issue preclusion. Mr. Varah claims issue preclusion does not bar his current ineffective assistance of counsel claim because "[t]he claim presented in this petition is different because it is now supported by the affidavit of Var ah's trial counsel, where his claim in the direct appeal was not."

We have carefully reviewed Mr. Varah's claims in hi s direct appeal and the affidavit written by his trial attorney, Daniel Whi te. This affidavit contains 50 enumerated paragraphs in which Mr. White lists his lack of preparation, failure to interview the government's proposed witnesses priorto trial, failure to-8-

comprehend the evidence against Mr. Varah so he cou ld prepare an adequate defense, his failure to hire an accountant, errors he made during cross examination and his poor handling regarding whetherMr. Varah should testify on his own behalf. These are the exact same failings Mr. Varah alleged in his direct appeal. The only difference is in the direct appea l his counsel provided record citations as evidence whereas Mr. Varah's § 2255 mo tion is supported by Mr. White's affidavit. Mr. White's affidavit simply ad mits the accusations made by appellate counsel on direct appeal. As previously stated, we have already found those claims lacking merit in Mr. Varah's direct ap peal. Because we find no relevant distinction between the issues raised or the reasons given in the two proceedings, we hold Mr. Varah's ineffective assist ance of counsel claim is barred by the doctrine of issue preclusion and was properl y denied without a hearing.

C. Attorney Pico's Alleged Threats Against Trial Cou nsel Mr. Varah next alleges he deserved a hearing regard ing the threats United States Attorney Francis Pico allegedly made againstMr. White regarding the above referenced affidavit. Mr. Varah claims these threats were made to deprive him of Mr. White's testimony: This included withdrawal of his affidavit prepared to support Varah's claim of ineffective assistance of counsel.... Att orney Pico's actions also deprived Varah of Attorney White's testimony i n regards to the anti-semitic remarks made to him by Attorney Pico. Finally, these-9-

threats prevents [sic] Varah from using Attorney Wh ite's testimony to support his claim that exculpatory evidence was withheld by the Government. Mr. Varah alleges "these threats were that these Go vernment employees would use their influence to cause Attorney White financi al and professional harm if he did not withdraw the affidavit ... in support of hi s claim for ineffective assistance of counsel." The district court denied this claim noting that the only evidence Mr. Varah offered to support his claim was a letter fro m Mr. White declining Mr. Varah's request for an additional affidavit in whic h Mr. White specifically states that the letter should not be used as an evidentiary basis for any relief Mr. Varah sought in federal court. In the letter Mr. White d oes not claim that any threats have been made against him. The district court fou nd: The additional affidavit defendant sought from his trial counsel relates to communications made after trial and afte r the original affidavit was delivered to the defendant. This gro und for the motion under 28 U.S.C. § 2255, even if true, would not jus tify vacating, setting aside, or correcting the sentence imposed b y the court. No showing has been made that the conduct of government officials was in fact improper and if it was, whether it infected the trial in such a manner as to warrant reversal or whether it was harmless beyond a reasonable doubt.
The only threat Mr. Varah identifies focuses on Mr. White withdrawing his affidavit written in support of Mr. Varah's ineffec tive assistance of counsel claim. This affidavit, however, was not withdrawn and was considered as evidence by both the district court and this court. Mr. Varah has thus suffered no prejudice-10-

even if he were able to prove such a threat had bee n made. His expansion of this one alleged threat into a whole new realm of prejud ice is unsupported by any evidence or facts other than his conclusory allegat ions nor has he tied it to any grounds warranting vacating, setting aside or corre cting his sentence. For these reasons we find the district court did not abuse it s discretion in denying him a hearing on this issue.

D. Effect of Mr. Varah's Mental Illness Mr. Varah alleges his mental illness prevented him from assisting in his defense during the trial. The government notes that Mr. Varah failed to allege this claim in his direct appeal, which procedurallybars it from being raised for the first time in a § 2255 motion unless "he can sh ow cause excusing his procedural default and actual prejudice resulting f rom the errors of which he complains, or can show that a fundamental miscarria ge of justice will occur if his claim is not addressed." United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993). Mr. Varah fails to allege any reason why he failed to bring this claim during his direct appeal. Even if his claim was no t procedurally barred, however, it would fail. The only evidence Mr. Varah offers in support of his claim is his diagnosis shortly after the trial with severe depre ssion and a letter from the Department of Corrections stating that since his in carceration he has been-11-

prescribed Prozac and required to see a psychiatris t once a month. These are all events occurring after the trial. Furthermore, the district court in its opinion found: The court did not observe difficulty on the part of the defendant in relating to his counsel during the course of the tr ial. The defendant attended robing room motions and proceedings outsid e of the presence of the jury when the defendant was subjectto closer observation by the court. Neither the court's obse rvation of the defendant during the course of the four-week trial nor the record in this matter support defendant's claim. Giving the district court's personal observations d eference and considering the absence of any evidence beyond Mr. Varah's concluso ry allegations, we find the district court did not abuse its discretion in deny ing his motion without a hearing on this matter.

E. Allegations of Religious Prejudice Mr. Varah alleges Mr. Pico made anti-Semitic remark s which "raise a strong presumption that his motives in taking certa in actions in this case are based on his prejudice against Varah because of his relig ion." In particular Mr. Varah claims Mr. Pico's interference with Mr. Varah's req uest to be transferred to Canada, his native country, pursuant to 18 U.S.C. § 4100 et seq ., was motivated by anti-Semitism. Mr. Varah provides no factual ba sis for this claim nor any information regarding how or when Mr. Pico interfer ed with his transfer request.-12-

We agree with the government's position that becaus e § 2255 motions are brought to vacate, set aside or correct illegal or unconsti tutional convictions or sentences it is not the appropriate medium to deal with denia l of transfer request motions. The district court correctly denied this claim with out holding a hearing.

F. Government's Alleged Failure to Disclose Exculpat ory Evidence Mr. Varah maintains the government failed to disclo se exculpatory evidence including "specific actions by other Government agencies which may be inconsistent with his conviction, ... specific witn esses interviewed by the Government before his trial who subsequently gave e xculpatory testimony in other proceedings, and Government witnesses who gav e different testimony at subsequent proceedings than the testimony given at Varah's trial." The district court denied these allegations, stating: Defense counsel was provided access to all evidence in possession of the prosecution as reflected in the Proffer of evid ence submitted two months before trial and in the six notices filed bythe Government before trial which described its intention to use c ertain evidence. In addition, evidence in possession of the Government was available in the months preceding trial for examination by the d efendant and his counsel.... There is no evidence that the United States was aware of perjured or contradictory testimony, if any, allege dly given by Government witnesses or of potential witnesses thatwas generated afterdefendant's trial. There is no basis for defendan t's contention that the United States concealed evidence from him or otherwise sought to undermine his defense.-13-

After reviewing the record we find no evidence of p rosecutorial misconduct. The record reveals the information kno wn by the government before and during trial was made freely available to Mr. V arah and his attorney. The fact they may have failed to review it thoroughly c annot be blamed on the government. Furthermore, Mr. Varah provides no evi dence that the government knew of any allegedly contradictory testimony befor e or during trial. Once again, Mr. Varah makes several conclusory allegations. To support his allegations Mr. Varah points to the fact that two government agenci es, the Security and Exchange Commission and the Internal Revenue Service, made s ubsequent findings of lesser liability against Mr. Varah "based upon the same do cuments in the possession of Attorney Pico and the U.S. Attorney's office for th e District of Wyoming." This claim merely asserts that different parts of the go vernment concerned with different types of liability relied on the same doc uments to find different levels of culpability. It does not support a claim that the government somehow concealed evidence from Mr. Varah. The district court did no t abuse its discretion in denying Mr. Varah's claim for a hearing on this iss ue.

G. Mr. Pico's Failure to Deny or Contradict Mr. Varah's Allegations Mr. Varah's final contention is a broad generalizat ion that because Mr. Pico3 We note for the record that in its brief the gove rnment states that it does

not concede that any threats were made against Mr. White and "vehemently and without qualification" denies that any racially mot ivated actions were taken by its attorneys. -14- has not contradicted or denied the accusations of m isconduct or anti-Semitic remarks or motivations made against him an evidenti ary hearing must be held on Mr. Varah's motion. This contention merely attempt s to revive arguments we have already addressed above and is without merit. 3

The district court's order is AFFIRMED

. Entered for the Court: WADE BRORBY United States Circuit Judge