UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MICHAEL MCCALISTER, Defendant-Appellant. No. 13-5061 (D.C. Nos. 4:12-CV -00324-TCK-FHM & 4:99-CR-00020-TCK-1) (N.D. Okla.)

ORDER DENYING CERTIFICA TE OF APPEALABILITY AND AUTHORIZATION UNDER 28 U.S.C. § 2255(h) *

Before BRISCOE , Chief Judge, O’BRIEN and MATHESON , Circuit Judges.

Michael McCalister, a federal prisoner proceeding pro se, seeks to appeal the district court’s dism issal of his 28 U.S.C. § 2255 motion as an unauthorized second or successive § 2255 motion. In the alternative, he seeks th is court’s authorization to proceed with second or su ccessive § 2255 claims. See 28 U.S.C. § 2255(h). We deny a certificate of appealability (COA) and deny authorization.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 20, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - Background McCalister was convicted in 1999 of cons piracy to possess with intent to distribute controlled substan ces in violation of 21 U.S. C. § 846. He since has filed several challenges to his conviction, including a § 2255 motion and other motions. See United States v. McCalister , 453 F. App’x 776, 777 (10th Cir. 2011). In that matter, in which Mc Calister appealed from the district court’s denial of a Fed. R. Civ. P. 60(b) motion, we held th at the Rule 60(b) moti on was subject to the authorization requireme nts of § 2255(h). See McCalister , 453 F. App’x at 779. We also explicitly informed McCa lister of the requirements for authorization for second or successive § 2255 motions. See id. In June 2012, McCalister filed in the district court a ne w § 2255 motion setting forth three claims: (1) the June 2011 convictions of former Tulsa police officers Harold Wells and John K. Gray 1 meant that crucial eviden ce at his trial was tainted and should be excluded; (2) newly discovered evidence showed that a search warrant for 2003 West Xyler in Tuls a was fabricated, so that evidence from that search should have been excluded; and (3) the 200 9 dismissal of conspi racy and continuing criminal enterprise charges against co-defendants John Torrence and Orlando Mackey “created a variance wh ich renders the Conspiracy . . . Non-existant [sic],”

1 Although McCalister states that Gray and Wells both were convicted in 2011, it appears that Gray pl eaded guilty in 2010. See In re Eskridge , No. 11-5082, at 4 (10th Cir. July 7, 2011) ( unpublished order) (taking judici al notice of Gray’s guilty plea).- 3 - making him “actually Innocent of the Conspi racy conviction.” R. at 98 (emphasis omitted). The district court dismissed the motion as an una uthorized second or successive § 2255 motion. It al so held that a transfer to this court was not in the interest of justice under 28 U. S.C. § 1631 because “it was cl ear at the time of filing that [the district] Court l acked jurisdiction,” given th at in the 2011 decision “the Tenth Circuit clearly explained that [McCal ister] must obtain an order from the Tenth Circuit Court of Appeals authorizing the di strict court to consider any second or successive § 2255 motions.” R. at 191. McCalister filed a Fed. R. Civ. P. 59(e) motion to al ter or amend the judgment arguing that the § 2255 motion should not be considered second or successive because the facts underlying the claims did not exist until long after he had filed his first § 2255 motion. The dist rict court denied the Rule 59(e) motion, holding that the “claim alleging wrongful conduct by officers wa s ‘in existence’ at the time he filed his prior § 2255 motions; [M cCalister] was just unawa re of the claim until he discovered the possible corruption of such officers by virtue of their criminal convictions.” R. at 200. Certificate of Appealability To appeal, McCalister must secure a COA. See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008). To do so, he must show both “that jurists of reason would find it debatable wh ether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the- 4 - district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Relying on Panetti v. Quarterman , 551 U.S. 930 (2007), McCalister argues that his new § 2255 motion was not successi ve because the factual basis for his claims did not exist when he f iled his first § 2255 motion. “In Panetti , the Supreme Court concluded that a claim that was not ri pe at the time the st ate prisoner filed his first federal habeas petition would not be considered ‘second or successive’ under [28 U.S.C.] § 2244(b) if the petitioner asserted the clai m in a later habeas petition once it became ripe.” In re Weathersby , 717 F.3d 1108, 1110 (10th Cir. 2013). As the district court recognized, how ever, the claim of police corruption actually existed at the time of McCalister’s trial. At mo st, the convictions of Wells and Gray provide further evidence to suppor t an argument that Mc Calister could have made as early as his trial. Accordingly, the first clai m was not newly ripe, and the restrictions of § 2255( h) properly apply. See id. at 1111 (“[I]f the purported defect existed, or the claim was ripe, at the time of the prio r petition, the later petition is likely to be held successive even if the legal basis for th e attack was not.” (internal quotation marks omitted)); see also Leal Garcia v. Quarterman , 573 F.3d 214, 220-21 (5th Cir. 2009) (rejecting petitioner’s broad argument that any claim that was “unavailable to him at the time of his fi rst habeas petition” was not a successive claim, because the argument “would permit peti tioners filing later habeas petitions to assert that, because the evidence was not previously discovered or discoverable, the- 5 - claim was unavailable; theref ore the later petition is non- successive”). No reasonable jurist could debate the correct ness of the district court’s di smissal of the first claim. It is unclear whether Mc Calister asserts on appeal th at the second claim also arises out of the corruption convictions. Compare Aplt. Br. at 3(d), 3(e)-3(g) (discussing claims one and three, but not claim two); id. at 3(i) (appearing to concede that the second claim was ripe be fore the corruption convictions), with id. at 3(j)-3(k) (appearing to assert that cl aims one and two could only have been discovered as of June 2011). A review of McCalister’s § 2255 motion, however, indicates that the second claim is based on evidence other than the convictions. Accordingly, McCalister’s Panetti theory does not apply to the second claim, and no reasonable jurist could debate the correct ness of the district court’s dismissal of this claim as second or successive. As for the third claim, ev en accepting that the basis for the claim did not arise until after McCalister filed hi s first § 2255 motion, the dist rict court would still be correct in its procedural ruling. Since 2009, when the dismis sal claim allegedly ripened, McCalister has filed in the distri ct court at least one other motion that was subject to the provisi ons of § 2255(h). See McCalister , 453 F. App’x at 777, 779. The new § 2255 motion was filed after that motion, and therefore the new motion is properly considered to be successive. Moreover, even if the district cour t had erred in its procedural ruling, McCalister still must show that reasonable jurists “woul d find it debatable whether- 6 - the petition states a valid claim of the denial of a constitutional right.” Slack , 529 U.S. at 484. This he cannot do. Th e dismissal of charge s against Torrence and Mackey does not mean that there was no conspiracy. See United States v. Coppola , 526 F.2d 764, 776 (10th Cir. 1975). And as a matter of la w, the dismissal of charges against a coconspirator does nothing to undermine McCalister’s conviction for conspiracy. See id. ; see also United States v. Rozin , 664 F.3d 1052, 1066 (6th Cir. 2012); United States v. Mejia-Mesa , 153 F.3d 925, 930 (9th Cir. 1998); United States v. Dakins , 872 F.2d 1061, 1065 (D.C. Cir. 1989); United States v. Sasser , 974 F.2d 1544, 1560 (10t h Cir. 1992); United States v. Kreimes , 649 F.2d 1185, 1193 (5th Cir. 1981). Further, to the extent that McCalist er is claiming that th e dismissals created a variance, this court has held that a defe ndant cannot rely on subsequently adduced evidence to prove a variance: “The question of fatal va riance must be judged on the record as it stood at the end of the ev idence in the defendants’ own trial.” United States v. Howard , 751 F.2d 336, 338 (10th Cir. 1984). McCalister also contends that the dist rict court should have transferred the motion to this court rather than dismissing it. But al though the district court may transfer a second or succes sive § 2255 motion to th is court, it is not required to do

so. See In re Cline , 531 F.3d 1249, 1252 (10th Cir. 200 8) (per curiam). The district court evaluated appropriate factors in consid ering whether a transfer would be in the interest of justice. See id. at 1251-52. No reasonable juri st could conclude that the district court was required to transfer the § 2255 motion rath er than to di smiss it.- 7 - For these reasons, McCalister’s a pplication for a COA is denied. Request for Authorization McCalister alternatively requests author ization under § 2255(h) to file his three claims. The applicable standard is set forth in § 2255(h)(1), requiring a prima facie showing of “newly discovered eviden ce that, if proven and viewed in light of the evidence as a whole, would be suffici ent to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the offense.” This court already has examined wh ether the first and second claims merit authorization in deciding a motion for auth orization brought by one of McCalister’s codefendants, Robert Eskridge. See In re Eskridge , No. 11-5082 (10th Cir. July 7, 2011) (unpublished order). With rega rd to the first cl aim, the majority 2 concluded that the evidence of the co rruption convictions did not establish that no reasonable factfinder would have found Eskridge guilty. See id. at 9, 12. “This court has little or no basis to conclude that Gray’s and We lls’ testimony was so material that, if impeached, Eskridge would not have b een found guilty.” Id. at 10. With regard to the second claim, the major ity concluded that the cha llenge against the search warrant was not supported by an y newly discovered evidence. See id. at 14. McCalister asserts, without elaborati on, that evidence procured by Wells and Gray was crucial at trial. But, as with Eskridge, McCalister has provided “little or no

2 Chief Judge Briscoe dissented and would have granted authorization. See Eskridge , No. 11-5082, at 15.- 8 - basis” to conclude that any evidence c onnected to or testimony by Gray and Wells “was so material that, if impeached” with the evid ence of the convictions, no reasonable factfinder would ha ve found McCalister guilty. Id. at 10. He has not provided any transcripts to assess the materiality of Gr ay’s and Wells’ testimony. And the information before us shows that during the trial, two government witnesses other than Gray and Wells “testified direct ly as to . . . drug activity on the part of McCalister.” United States v. Busby , 16 F. App’x 817, 825 (10th Cir. 2001). On direct appeal, this court was “in accord ” with the government’s position that the evidence showed that there was “a ‘large scale’ drug conspiracy extending from 1991 to 1999 in the Tulsa, Oklahom a area,” and “that McCalister became a part of that conspiracy in 1994 and continued to be a member thereof until 1999.” Id. In short, McCalister has not made a prima facie show ing that the new evidence of Wells’ and Gray’s subsequent convictions , viewed in light of the ev idence as a whole, would be sufficient to establish by cl ear and convincing evidence th at no reasonable factfinder would have found him guilty of a drug cons piracy, as § 2255(h) (1) requires. McCalister’s second claim alleges th at he has new evidence undermining a search warrant of 2003 West Xyler in Tulsa. He supports the claim with an August 2011 disclaimer from an Osage County De puty Court Clerk stating that she cannot locate a copy of any search warrant for that address. We deny authorization on the same grounds that this court previously deni ed Eskridge authorization to pursue this- 9 - claim: the search warran t’s validity was challenged at trial, and the August 2011 disclaimer is not newl y discovered evidence. See Eskridge , No. 11-5082, at 14. 3 As for the third claim, as stated a bove, the fact that the government did not pursue charges against Torrence and Mack ey does not mean that McCalister was actually innocent of a drug conspiracy. Th e dismissal of the charges against the codefendants fails to show that no reasona ble juror would have found McCalister guilty. Therefore, the third claim al so fails to satisfy § 2255(h)(1). McCalister’s request for a COA and his al ternative request for authorization to file a successive § 2255 motion are denied. Entered for the Court

ELISABETH A. SHUMAKER, Clerk

3 In addition, there is no showing of McCalister’s relationship to 2003 West Xyler to establish that he would have standing to challenge the search. See United States v. Johnson , 584 F.3d 995, 998 (10th Cir. 2009) (“The burden of proof is on the defendant to demonstrate that he has a reasonable expectat ion of privacy in the place searched to establish his standing.”).