FILED

United States Court of Appeals

Tenth Circuit

February 4, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARK ANTHONY HANKERSON,

Defendant - Appellant.

No. 14-3195

(D.C. No. 6:13-CR-10113-EFM-1)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.**

Petitioner-Appellant Mark Hankerson, a federal inmate appearing pro se,

appeals from the district court’s denial of his Motion for Leave of Court to

Conduct Discovery Pursuant to Rule 6(a) Governing § 2255. United States v.

Hankerson, No. 13-10113-EFM, 2014 WL 3955440 (D. Kan. Aug. 13, 2014). The

government has moved to dismiss the appeal as frivolous, and we grant the

*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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government’s motion.

Background

Pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement with a stipulated

sentence of 120 months and a waiver of the right to appeal, Mr. Hankerson pled

guilty to one count of interference with commerce by means of robbery and one

count of brandishing a firearm during and in relation to a crime of violence. Doc.

37. The court entered judgment on February 10, 2014 reflecting a sentence of

120 months and three years’ supervised release, Doc. 43, and Mr. Hankerson filed

a notice of appeal. The government sought to enforce the plea agreement and we

granted the motion, indicating that Mr. Hankerson could pursue his ineffective

assistance of counsel claims in a § 2255 motion. United States v. Hankerson, 568

F. App’x 638, 638–39 (10th Cir. 2014).

Mr. Hankerson subsequently filed a “Motion for Leave of Court to Conduct

Discovery Pursuant to Rule 6(a) Governing § 2255.” R. 13. He argued that he

was entitled to appointment of counsel to conduct discovery in anticipation of an

ineffective assistance of counsel claim based upon a failure to request a mental

competency hearing. Id. The motion asserted “it is clear that the Petitioner

suffers from a mental disease or defect rendering him mentally incompetent to the

extent that he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.” Id.

Rule 6(a) provides that “[i]f necessary for effective discovery, the judge

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must appoint an attorney for a moving party who qualifies to have counsel

appointed under 18 U.S.C. § 3006A.” Section 3006A, more commonly known as

the Criminal Justice Act, provides for appointment of counsel for financially

eligible individuals under certain circumstances, including where an individual “is

subject to a mental condition hearing under chapter 313,” 18 U.S.C.

§ 3006A(a)(1)(F), and, in § 2255 proceedings, where a court determines that “the

interests of justice so require.” Id. § 3006A(a)(2)(B). 

The district court denied Mr. Hankerson’s motion, observing that “there is

nothing in the record that makes it clear that Mr. Hankerson suffers from a mental

disease or defect that renders him incompetent to understand the proceedings

against him or to assist in his defense.” R. 18. The court, which Mr. Hankerson

appeared before at sentencing, noted that Mr. Hankerson reported no history of

mental illness in the Presentence Investigation Report and denied any mental

health issues at his change of plea hearing. Id. Mr. Hankerson filed a timely

appeal. Doc. 61.

Discussion

In his pro se appeal, Mr. Hankerson argues the district court abused its

discretion in denying his motion. We construe Mr. Hankerson’s pro se pleadings

liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972). A claim is frivolous

where it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

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490 U.S. 319, 325 (1989).

We agree with the government that both Mr. Hankerson’s appeal and his

underlying claim that the district court abused its discretion in denying discovery

are frivolous. Mr. Hankerson argues that he had a history of counseling and

diagnoses that resulted in him receiving disability benefits. Aplt. Br. 2. Yet he

provides no facts that would undermine the district court’s reliance on his

representations at the change of plea and sentencing hearings that he was

competent. As we have pointed out, though appearing pro se, an inmate is

responsible for factual development. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991). As the district court noted, Mr. Hankerson reported at the presentence

investigation stage and the plea change stage that he had no mental health issues.

Thus, we GRANT the government’s motion and DISMISS Mr. Hankerson’s

appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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