UNITED STATES COURT 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 CERTIFICATE OF APPEALABILITY 

AND DISMISSING APPEAL

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

While an inmate at Leavenworth federal prison, Rodney McIntosh hit prison 

employees with urine and other liquid 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 and sentences and the Supreme Court 

denied certiorari review. See United States v. McIntosh, 573 F. App’x 760 (10th Cir.) 

 

1

 According to the evidence he also threatened to squirt feces on them. 

2

 At the time of sentencing, McIntosh had completed the sentence he had been 

serving when he committed the instant offenses. However, he remained in custody 

pending trial in this case. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 24, 2017

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

(unpublished), cert. denied, 135 S. Ct. 768 (2014). 

McIntosh filed a 28 U.S.C. § 2255 motion and 38 related pleadings raising myriad 

claims. The district judge considered them all and denied the § 2255 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 presented were adequate to deserve 

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 

(quotation marks omitted). When, as here, a district court’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 court was correct in its procedural ruling.” 

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

In his COA application and opening brief, McIntosh makes various arguments 

relating to the indictment, the jury instructions, and his sentence. He also claims the 

witnesses presented perjured testimony, alleges an ex post facto claim, and says the 

government committed prosecutorial misconduct during closing argument. But, as the 

district judge decided, these claims are procedurally 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 matters which should have 

been raised on appeal.”) (quotation marks omitted). “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 miscarriage 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 assistance 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 judge’s failure to instruct the jury on the 

lesser included offense of misdemeanor “simple assault” under 18 U.S.C. § 111(a)(1). 

We restrict our review to that issue because the others are not sufficiently developed. 

 The district judge decided appellate counsel was not ineffective because McIntosh 

was not entitled to such instruction. 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 willful attempt or a threat to inflict injury 

 

3

 Before trial McIntosh moved to dismiss 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 mainly restricted to sentencing matters. The 

sentencing issues mentioned in his § 2255 motion are different from those he raised on 

direct appeal. 
- 4 - 

and “assault involving physical contact” does not require an intent to cause bodily injury. 

 But since her decision in this case, we clarified 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 conviction under § 111(a) including misdemeanor 

“simple assault” and felony “assault involving physical contact.” United States v. 

Wolfname, 835 F.3d 1214, 1216, 1218 (10th Cir. 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 (10th Cir. 2003) (“in the context 

of § 111, the definition of ‘simple assault’ is assault which does not involve actual 

physical contact”; “the only difference between 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 assault” instruction because the element 

differentiating the two offenses—physical contact—was not in dispute at trial. See 

United States v. Moore, 108 F.3d 270, 272 (10th Cir. 1997) (a defendant is entitled to a 

lesser included offense instruction if, among other things, “the elements differentiating 
- 5 - 

the two offenses are in dispute”). The government’s argument and 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 “simple assault”—“the evidence only allowed the 

jury to decide that [McIntosh] either did 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). Because a lesser included offense instruction 

was not warranted by the evidence, counsel was not constitutionally ineffective for not 

raising this issue on direct appeal (the only specific claim presented for our 

consideration).4

 See Cannon v. Mullin, 383 F.3d 1152, 1177 (10th Cir. 2004) (failure to 

raise meritless claims is not ineffective assistance). 

 McIntosh also claims he is actually innocent. “[A]ctual innocence, if proved, 

serves as a gateway through which a petitioner may pass whether the impediment is a 

procedural bar . . . or . . . expiration of the statute of limitations.” See McQuiggin v. 

Perkins, --- U.S. ---, 133 S. Ct. 1924, 1928 (2013). 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. McIntosh claims the prison employees lied at 

trial and the videotape evidence did not support their allegations. But a viable claim of 

 

4

 McIntosh has not claimed trial counsel was ineffective for not requesting a 

“simple assault” instruction. 

5

 That is true, in large measure, because 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 insufficiency.”) (quotation marks 

omitted). 
- 6 - 

actual innocence requires a petitioner “to support his allegations of constitutional error 

with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical 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 excused, 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 judge 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.