* This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. 

## F I L E D United States Court of Appeals Tenth Circuit 

### May 5, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Respondent-Appellee, No. 05-3340

v. District of Kansas LAVELLE HENDERSON,

Petitioner-Appellant. (D.C. Nos. 05-CV-3110-RDR and 01-CR-40020-RDR)

ORDER *

Before HARTZ , SEYMOUR , and McCONNELL , Circuit Judges.

Lavelle Henderson, a federal prisoner proceeding pro se , seeks a certificate of appealability (COA) that would allow him to appe al from the district court’s order denying his habeas corpus petition under 28 U .S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Hender son has failed to make “a substantial showing of the denial of a constitution al right,” we deny his request for a COA, and we dismiss the appeal. Id. § 2253(c)(2).-2- Background Mr. Henderson was convicted by a jury on one count of engaging in a continuing criminal enterprise pursuant to 21 U.S.C . § 848 and one count of engaging in a money laundering conspiracy pursuant to 18 U.S.C. §§ 1956(h) and 1957(a). The district court imposed an automatic life sentence pursuant to 21 U.S.C. § 848(b). Mr. Henderson filed a direct ap peal and, subsequently, sought to vacate his sentence pursuant to 28 U.S.C. § 2255 . This Court affirmed his conviction and sentence on direct appeal, see United States v. Henderson , No. 02- 3426, 78 Fed. App’x 91 (10th Cir. Oct. 15, 2003) (u npublished), and the district court denied his motion to vacate his sentence unde r § 2255. Mr. Henderson then sought a COA from the district court, which was den ied.
Discussion The denial of a motion for relief under § 2255 may be appealed only if the district court or this Court first issues a COA. 2 8 U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has made a su bstantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). In order to make such a showing, a petitioner must demonstrate that “reason able jurists could debate whether . . . the petition should have been resolve d in a different manner or that the issues presented were adequate to deserve encou ragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation mark s omitted).-3-

In his request for a COA, Mr. Henderson makes eightarguments, which we construe liberally. Two of those arguments amount to claims of ineffective assistance of counsel, and another two challenge th e constitutionality and length of the sentence. Mr. Henderson also alleges a Brady violation and a denial of due process. Finally, he challenges the constitutional ity of his indictment and the sufficiency of the evidence against him. We consid er each argument in turn. A. Ineffective Assistance of Counsel To support a claim of ineffective assistance of cou nsel, a defendant must show that his attorney’s performance “‘fell below an objective standard of reasonableness’ and that the unreasonably deficientperformance resulted in prejudice.” Lucero v. Kerby , 133 F.3d 1299, 1323 (10th Cir. 1998) (quoting Strickland v. Washington , 466 U.S. 668, 688, 691–92 (1984)). Prejudice is shown when a defendant establishes “that there [was] a re asonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Mr. Henderson claims that he wa s denied effective assistance of counsel for two reasons. First, Mr. Henderson claims that his attorney faile d to adequately challenge the district court’s decision to amend the indictme nt. Mr. Henderson does not explain how his attorney’s objection, properly rais ed at trial, was inadequate, but even if the objection to the amendment was somehow deficient, it did not result in-4-

prejudice. Generally, to be amended an indictment must be resubmitted to a grand jury, unless the amendment is merely a matterof form. Unites States v. Gammill , 421 F.2d 185, 186 (10th Cir. 1970). The districtcourt may amend the dates in an indictment so long as the date is not a n essential element of the offense charged. Id. (“A defective allegation of time is a matter of fo rm if time is not an essential element of the offense and if the indictment charges facts showing that the offense was committed within the p eriod of the statute of limitations.”); see also United States v. Leichtnam , 948 F.2d 370, 376–77 (7th Cir. 1991) (holding that an indictment need not be resubmitted when an amendment merely narrows the charges to “something less than what the grand jury charged” but which is “still a criminal offens e and one that the grand jury clearly set out in its indictment”). In this case, the district court allowed an amendme nt to the indictment that changed the starting dates of the alleged continuin g criminal enterprise, resulting in a shorter period than the grand jury originally charged. Under Count 1, the alleged starting date of the enterprise was changedfrom April 1, 1992 to January 1, 1994 and the alleged beginning date of the firstpredicate act was changed from April 14, 1992 to January 1, 1994. This change was merely a matter of form, however, as the temporal scope of a conspiracy is n ot an “essential” or “material” element of the charge. United States v. Cina , 699 F.2d 853, 859 (7th Cir. 1983).-5-

The amendment narrowed the charges against Mr. Hend erson, but the amended indictment still charged him with a criminal offens e clearly set out in the original indictment. Moreover, even if the indictment had n ot been amended, there was sufficient evidence to convict Mr. Henderson on all counts because the jury found that Mr. Henderson had committed six other predicat e acts, which were unamended and sufficient to convict Mr. Henderson o f the conspiracy charge. Mr. Henderson therefore suffered no prejudice as a result of any deficiency in his attorney’s challenge to the amendment. Mr. Henderson next charges that he was denied effec tive assistance of counsel on his direct appeal because his counsel fa iled to contend that the government knowingly used perjured testimony in its case against him. As discussed below in Section C, Mr. Henderson has notdemonstrated that the government knowingly used perjured testimony. Mr. Henderson therefore has not demonstrated that there is a reasonable probabilitythat he would have prevailed on direct appeal had his attorney raised the perjury issue, and he suffered no prejudice as a result of his attorney’s performance

. B. Violation of Brady v. Maryland Mr. Henderson contends that, in violation of Brady v. Maryland, 373 U.S. 83 (1963), the prosecution withheld evidence that L aPreasha Wynne, an exgirlfriend of Mr. Henderson who testified against h im, was incarcerated for six-6-

months from October 1993 to March 1994. He contend s that this evidence is exculpatory impeachment evidence because Ms. Wynne testified at trial that she was involved with Mr. Henderson as part of the cont inuing criminal enterprise during this period. Based on a review of Ms. Wynne ’s testimony, however, it is clear that Mr. Henderson was not prejudiced by any failure to disclose the fact of Ms. Wynne’s incarceration. Bradyviolations only occur when “the nondisclosure was so serious that there is a reasonable probabili ty that the suppressed evidence would have produced a different verdict.” Strickler v. Greene , 527 U.S. 263, 281 (1999). In this case, evidence of the incarceratio n was not necessarily exculpatory. At trial, Ms. Wynne never testified a s to the specific dates of her trips she took to transport cocaine for Mr. Henders on, but she agreed generally that she made trips in 1994 and the beginning of 19 95. She never specifically told the jury that she made trips during late 1993 or early 1994. Her testimony therefore was consistent with Mr. Henderson’s assertion that she was incarcerated only until March 1994. Even if evidence of the inc arceration would have undermined testimony by other witnesses concerning Ms. Wynne’s (subsequently retracted) statement to police about 1992 and 1993 drug trips, withholding that evidence could not have prejudiced the verdict beca use the amended indictment only charged Mr. Henderson for conduct after January 1, 1994. Moreover, in a case where the government produced a litany of witn esses to testify about Mr.-7-

Henderson’s drug trafficking, Ms. Wynne was easily the least effective. She testified that she did not know whether Mr. Henders on was in the courtroom, that she did not know whether her previous statement to the police was truthful, and that some of her previous accounts of Mr. Henderson ’s drug trafficking activities were entirely fabricated. On cross-examination, sh e admitted to lying under oath about her trips to California and to telling at lea st six inconsistent versions of her story to various police and court officers. Yet an other piece of impeachment evidence against Ms. Wynne would have made no diffe rence in the verdict. Mr. Henderson has therefore failed to make a substantia l showing of the denial of a constitutional right by reason of a Bradyviolation. C. Perjured Testimony Next, Mr. Henderson argues that the prosecution kno wingly proffered perjured testimony. The prosecution’s knowing soli citation of, or failure to correct, perjured testimony violates the defendant’ s due process rights and will be grounds for a new trial “‘if the false testimony co uld in any reasonable likelihood have affected the judgment of the jury.’” United States v. Vaziri , 164 F.3d 556, 563 (10th Cir. 1999) (citing Giglio v. United States , 405 U.S. 150, 154 (1972)). In this case, however, Mr. Henderson has failed to demonstrate that any witness committed perjury, let alone that the government so licited perjured testimony. In-8-

some cases Mr. Henderson has affirmatively misrepre sented the trial testimony, while in others the alleged perjury goes to irrelev ant facts. For example, Mr. Henderson claims that one witness, Michael Reece, committed perjury by testifying that he bought coca ine from Mr. Henderson “every day of the year from 1988 to 1991.” Appella nt’s Br. 22. Mr. Henderson asserts, without providing any evidence, that Mr. R eece was in fact incarcerated during 19 months of that period. Yet even if we as sume that Mr. Reece was indeed incarcerated before 1991, and made the furth er assumption that the prosecution solicited that perjury, Mr. Henderson h as failed to show that the perjury had a reasonable likelihood of affecting th e judgment of the jury. Mr. Reece’s testimony about 1988 to 1991 simply served as background information about the relationship between Mr. Reece and Mr. He nderson, and concerned events that predated the period charged in the indi ctment by more than three years. That testimony had no material effect on th e outcome of the case. As another example, Mr. Henderson claims that one o f two prosecution witnesses, Michael Reece or Heather Reece, must hav e committed perjury because their testimony was inconsistent. According to Mr. Henderson, Heather Reece testified that the enterprise was distributing $3,0 00 to $5,000 worth of cocaine per day, while Michael Reece testified that “if anyone said that, it would be a lie.” Id. Setting aside the fact that witnesses frequently disagree in their interpretation-9-

and recollection of events, and that tension betwee n witnesses’ testimony does not prove subornation of perjury by the prosecution, th e testimony is not actually inconsistent. During the portion of the testimony cited by Mr. Henderson, Michael Reece said that anyone who imputed certain daily drug quantities to the enterprise would be lying, and that the enterprise never took in $5,000 to $8,000 per day. He never disagreed with a figure of $3,00 0 to $5,000 per day. Mr. Henderson cites another half-dozen picayune examples and concludes with the extravagant claim that “every one of the g overnment’s witnesses committed perjury with the full knowledge of the pr osecutor.” Id. It is as if Mr. Henderson has pored over the trial transcript, hunt ing for minor inconsistencies between the stories of prosecution witnesses and ca sting each one as an instance of deliberate prosecution misconduct. To the contr ary, we find no evidence of perjury or the solicitation of perjury by the prose cution, and therefore hold that Mr. Henderson has failed to make a substantial show ing of the denial of a constitutional right on those grounds. D. Issues Not Raised Below Next, Mr. Henderson raises four issues for the firs t time on appeal, as part of a supplemental brief entitled “Motion to Amend and/or Supplement an Original Pleading (Movant’s Initial 28 U.S.C. § 2255 and Sub sequent Application for a Certificate of Appealability) Pursuant to [Fed. R. Civ. P.] 15(a) and (d) in the-10-

Interest of Justice so as to Obtain a Fair and JustResult Under the Federal Rules of Habeas Procedure.” This motion sets forth four new grounds for relief: (1) that the indictment was constitutionally defective, (2) that Mr. Henderson’s sentence was unreasonable, (3) that the district court erredin certain sentencing calculations, and (4) that the evidence was insuffi cient to support the continuing criminal enterprise conviction. Because Mr. Hender son raised none of these issues before the district court, we decline to con sider them as part of the application for a COA. Contrary to the title of Mr. Henderson’s motion, th is Court may not grant leave to amend or supplement an original § 2255 pet ition under Rule 15. Mr. Henderson had an opportunity to raise all of these claims before the district court, and it was the sole province of that court, acting in accordance with Rule 15(a) or 15(d), to grant leave to amend or supplement the or iginal petition. See Fed. R. Civ. P. 1 (“These rules govern the procedure in the United States district courts in all suits of a civil nature . . . .”). We may not authorize Mr. Henderson to retroactively amend his “initial” petition to covera host of new issues. We therefore deny Mr. Henderson’s motion to amend or s upplement his original pleadings, and treat all of the new issues raised i n his brief as not preserved. Federal appellate courts only rarely consider an is sue not passed upon below. Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 720 (10th Cir. 1993). In-11-

this case, Mr. Henderson “does not argue on appeal that any special circumstance requires us to address [his] contention despite lac k of preservation below.” United States v. Windrix , 405 F.3d 1146, 1156 (10th Cir. 2005). We therefo re do not consider his remaining claims.

Conclusion Accordingly, we DENY Lavelle Henderson’s motion to amend or supplement his initial petition, DENY his request for a COA, and DISMISS this appeal. Entered for the Court, Michael W. McConnell Circuit Judge