UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

ORDER DENYING CERTIFIC ATE OF APPEALABILITY AND DISMISSING APPEAL

Before HARTZ , O’BRIEN , and PHILLIPS , Circuit Judges.

While an inmate at Leavenworth federa l prison, Rodney McIntosh hit prison employees with urine and other li quid substances and spit on them. 1 He was indicted for nine counts of assault involving physical contact in violation of 18 U.S.C. § 111(a)(1) and convicted by a jury of all but one. His conduct earned him a sentence of 144 months imprisonment. 2 We affirmed his convictions a nd sentences and the Supreme Court denied certiorari review. See United States v. McIntosh , 573 F. App’x 760 (10th Cir.)

1 According to the evid ence he also threatened to squirt feces on them. 2 At the time of sentencing, McIntosh ha d completed the sentence he had been serving when he committed the instant offe nses. However, he remained in custody pending trial in this case. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - (unpublished), cert. denied , 135 S. Ct. 768 (2014). McIntosh filed a 28 U.S.C. § 2255 motion an d 38 related pleadings raising myriad claims. The district judge considered them all and denied the § 22 55 motion in a detailed 45-page order. McIntosh seeks to appeal from the denial but needs a certificate of appealability (COA) to do so. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (a COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus). The judge denied a COA so he renews his request here. COAs may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). McIntosh must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presente d were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation marks omitted). Wh en, as here, a district cour t’s ruling rests on procedural grounds, it must be upheld unless “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district co urt was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In his COA application and opening br ief, McIntosh makes various arguments relating to the indictment, the jury instructions, and his sent ence. He also claims the witnesses presented perjured testimony, allege s an ex post facto claim, and says the government committed prosecutorial misconduc t during closing argument. But, as the district judge decided, these claims are pro cedurally barred because he could have but did- 3 - not raise them on direct appeal. 3 United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (“Section 2255 is not available to test the legality of matte rs which should have been raised on appeal.”) (quotation marks omitte d). “A defendant who fails to present an issue on direct appeal is barred from raising the issue in a § 2255 motion, unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarri age of justice will occur if his claim is not addressed.” Id

. Here, McIntosh makes a broad statement blaming his attorney for not raising the claims on direct appeal. United States v. Harms , 371 F.3d 1208, 1211 (10th Cir. 2004) (“A meritorious claim of ineffective assistan ce of counsel constitutes cause and prejudice for purposes of surmounting the procedural bar.”). But the only specific claim is that appellate counsel should have challenged the j udge’s failure to instru ct the jury on the lesser included offense of misdemeanor “simpl e assault” under 18 U.S.C. § 111(a)(1). We restrict our review to that issue becaus e the others are not sufficiently developed. The district judge decided appellate couns el was not ineffective because McIntosh was not entitled to such instru ction. She concluded misdemeanor “simple assault” is not a lesser included offense of “assault involving physical contact”—the indicted felony offense—because “simple assault” requires a willf ul attempt or a threat to inflict injury

3 Before trial McIntosh moved to dism iss the indictment because the prison employees discarded their clothing thereby depriving him of evidence. The motion was denied. On direct appeal he sought reversal on that issue but otherwise raised no merits challenge to his conviction. His appeal was ma inly restricted to se ntencing matters. The sentencing issues mentioned in his § 2255 mo tion are different from those he raised on direct appeal.- 4 - and “assault involving phys ical contact” does not require an inte nt to cause bodily injury. But since her decision in this case, we clar ified that assault, i.e., “a willful attempt to inflict injury upon the person of another, or a threat to inflict injury upon the person of another,” is an element of every convic tion under § 111(a) in cluding misdemeanor “simple assault” and felony “assa ult involving physical contact.” United States v. Wolfname , 835 F.3d 1214, 1216, 1218 (10th Ci r. 2016). The only elemental difference between the two offenses is the latter’s requirement of physical contact. Id. at 1218; see also United States v. Hathaway , 318 F.3d 1001, 1008-09 (10t h Cir. 2003) (“in the context of § 111, the definition of ‘simple assault’ is assault which does not involve actual physical contact”; “the only difference be tween a felony offense and a misdemeanor offense under § 111(a) is the nature of the assault”). Thus, for purposes of § 111(a)(1), “simple assault” is a lesser included offense of “assault involving physical contact.” See Schmuck v. United States , 489 U.S. 705, 716 (1989) (“[An] offense is [a lesser-included offense of the charged offense if] the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no [lesser-included- offense] instruction is to be given . . . .”). Despite the intervening clarification of our precedent, the result here was proper. McIntosh was not entitled to a “simple as sault” instruction because the element differentiating the two offenses—physical c ontact—was not in dispute at trial. See United States v. Moore , 108 F.3d 270, 272 (1 0th Cir. 1997) (a defe ndant is entitled to a lesser included offense instruc tion if, among other things, “t he elements differentiating- 5 - the two offenses are in dispute”). The go vernment’s argument a nd supporting evidence were clear and simple: McIntosh hit prison employees with bodily fluids. McIntosh denied doing so; he did not rely on an absence of physical contact. Thus, the evidence at trial did not warrant an instruction on “sim ple assault”—“the evidence only allowed the jury to decide that [McIntosh] either di d or did not participate in [assault involving physical contact on the prison employees].” See United States v. Espinoza , 277 F. App’x 789, 792 (10th Cir. 2008) (unpublished). Be cause a lesser included offense instruction was not warranted by the evidence, counsel was not constitutionally ineffective for not raising this issue on direct appeal (t he only specific claim presented for our consideration). 4 See Cannon v. Mullin , 383 F.3d 1152, 1177 (10t h Cir. 2004) (failure to raise meritless claims is not ineffective assistance). McIntosh also claims he is actually in nocent. “[A]ctual innocence, if proved, serves as a gateway through which a petiti oner may pass whether the impediment is a procedural bar . . . or . . . expirati on of the statute of limitations.” See McQuiggin v. Perkins , --- U.S. ---, 133 S. Ct. 1924, 1928 (2 013). But actual innocence claims are rarely successful. 5 Id. ; see also Schlup v. Delo , 513 U.S. 298, 324 (1995). As the district judge decided, this case is no exception. Mc Intosh claims the prison employees lied at trial and the videotape evidence did not support their allegati ons. But a viable claim of

4 McIntosh has not claimed trial counse l was ineffective for not requesting a “simple assault” instruction. 5 That is true, in large measure, becau se actual innocence is confused with technical innocence. Bousley v. United States , 523 U.S. 614, 623 (1998) (“[A]ctual innocence means factual innocence, not mere legal in sufficiency.”) (quotation marks omitted).- 6 - actual innocence requires a petitioner “to suppor t his allegations of constitutional error with new reliable evidence —whether it be exculpatory scie ntific evidence, trustworthy eyewitness accounts, or cr itical physical evidence— that was not presented at trial .” Schlup , 513 U.S. at 324 (emphasis added). McIntosh provides no new evidence. 6 Because the result reached by the district judge is not reasonably debatable, we DENY a COA and DISMISS this matter. The district judge allowed McIntosh to proceed on appeal without prepayment of fees ( in forma pauperis or ifp ). But only prepayment of fees is excuse d, not the fees themselves. See 28 U.S.C. § 1915(a). McIntosh is required to pay all filing and docketing fees ($505.00). Payment must be
made to the Clerk of the District Court.

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge

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

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