United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
April 10, 2019, the Court denied Dennis Mahon's petition
for habeas corpus relief. Doc. 56. Mahon has appealed, and
the Court of Appeals has asked the Court to determine whether
a certificate of appealability should be granted. Docs. 58,
59. For the following reasons, the Court will deny the
11(a) of the Rules Governing Section 2255 Cases provides that
the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” See Fed. R. App. P. 22(b); see
also 28 U.S.C. § 2253(c)(1). The standard for
issuing a certificate of appealability (“COA”) is
whether the applicant has “made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “Where a district court has rejected
the constitutional claims on the merits, the showing required
to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
the “threshold inquiry” on debatability, the
petitioner “‘must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed
further.'” Lambright v. Stewart, 220 F.3d
1022, 1025 (9th Cir. 2000) (alteration and emphasis in
original) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). Even if a question is well settled in
our circuit, a constitutional claim is debatable if another
circuit has issued a conflicting ruling. See Id. at
1025-26. “[T]he showing a petitioner must make to be
heard on appeal is less than that to obtain relief.”
Id. at 1025 n.4 (citations omitted); see also
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)
(“a COA does not require a showing that the appeal will
background of this case and Mahon's arguments are set out
in the Court's April 10, 2019 order denying his §
2255 petition. See Doc. 56. In sum, Mahon asserted
ten grounds for relief, but raised only four objections to
Judge James F. Metcalf's Report and Recommendation
(“R&R”). Docs. 31, 49, 52. Mahon objected to
the R&R's rejection of his claims that: (1) appellate
counsel was ineffective in not appealing the Court's
ruling denying his motion to suppress statements of himself
and his co-defendant; (2) appellate counsel was ineffective
in failing to appeal the Court's denial of his motion to
dismiss Count 3 based on entrapment; (3) trial counsel was
ineffective in withdrawing the jury instruction on
entrapment; and (4) appellate counsel was ineffective in
failing to appeal the Court's application of a 12-level
sentencing enhancement for terrorism. Doc. 56 at 3. The
Court's rulings on these issues do not warrant a COA.
to the Court's denial of the motion to suppress, Mahon
has failed to show that reasonable jurists would disagree or
that the issues deserve further consideration. See
Lambright, 220 F.3d at 1025. The law governing whether
an officer's statements or actions constitute the
functional equivalent of interrogation is well-settled, and
relevant Ninth Circuit cases make clear that the agents'
actions in this case - explaining the charges that led to
Mahon's arrest and the investigations that were underway,
and then placing him and his brother in a van with recording
equipment - did not amount to the functional equivalent of
interrogation. See Doc. 56 at 7. As the Court's
“[W]hen an officer informs a defendant of the
circumstances which contribute to an intelligent exercise of
his judgment” including “the circumstances of his
arrest, ” such statements are “exclude[d] from
the definition of interrogation [as] words or actions
‘normally attendant to arrest and custody.'”
Moreno-Flores, 33 F.3d at 1169 (citing
Innis, 446 U.S. at 301). “The standard for
determining whether an officer's comments or actions
constitute the ‘functional equivalent' of
interrogation is quite high.” United States v.
Morgan, 738 F.3d 1002, 1006 (9th Cir. 2013). Even if the
officers' statements about the evidence, other raids, and
other persons of interest “may have struck a responsive
chord [with Defendants], or . . . constituted ‘subtle
compulsion, '” without more, such statements are
“insufficient to find that they were the functional
equivalent or interrogation.” Moreno-Flores,
33 F.3d at 1169; see also Morgan, 738 F.3d at 1006
(citing Innis, 446 U.S. at 303).
As noted above, the officers engaged in no questioning or
psychological ploys intended to elicit incriminating
responses. See Innis, 446 U.S. at 528. Thus, the
wiring of the van and mere hope that Defendants would make
voluntary statements does not amount to the functional
equivalent of interrogation, because “[o]fficers do not
interrogate a suspect simply by hoping that he will
incriminate himself.” Mauro, 481 U.S. at 529;
see also United States v. Hernandez-Mendoza, 600
F.3d 971, at 977 (8th Cir. 2010).
often general objections identified no contradicting circuit
law on point, his arguments about coercive circumstances
found no support in law or fact, and he failed to show a
substantial likelihood that a different result would have
occurred if appellate counsel had appealed the Court's
order. Id. at 5-10 (citing Clark v. Arnold,
769 F.3d 711, 725 (9th Cir. 2014)). The Court also concludes
that no reasonable jurists could disagree that Supreme Court
and Ninth Circuit precedent precluded Mahon's argument
that the Confrontation Clause barred his brother's
non-testimonial statements. Id. at 11-13.
reasonable jurists could disagree that clear disputes of fact
precluded dismissal of Count 3 based on entrapment.
See Doc. 56 at 13-20; see also Slack, 529
U.S. at 484. Mahon failed to identify “undisputed
evidence making it patently clear that an otherwise innocent
person was induced” by government agents to commit an
illegal act, nor that there was a substantial likelihood of a
different result on appeal. Id. at 15, 20 (quoting
United States v. Skarie, 917 F.2d 317, 320 (9th Cir.
to trial counsel's decision to withdraw the jury
instruction on entrapment, Mahon's objection was not
sufficiently clear or specific for the Court to determine
which part of the R&R's reasoning he objected to.
Doc. 56 at 21. Mahon's arguments failed to make “a
substantial showing of the denial of a constitutional
right” about which reasonable jurists could disagree.
See 28 U.S.C. § 2253(c)(2). There were sound
reasons for withdrawing the entrapment instruction.
See Doc. 56 at 20 (“an entrapment defense
would have allowed the prosecution to introduce adverse
evidence of Mahon's predisposition, including materials
from his farm, evidence of his connection to other bombings,
and evidence of his military service”). Given the
“wide latitude” afforded trial counsel in making
tactical decisions, the Court cannot conclude that reasonable
jurists would debate whether trial counsel's strategic
decision constituted ineffective assistance. See Id.
at 20-21 (quoting Strickland v. Washington, 466 U.S.
668, 689 (1984)).
Mahon also failed to state specific objections to the
R&R's reasoning on the 12-level sentencing
enhancement for terrorism under U.S.S.G. § 3A1.4.
Id. at 21-22. Such a general objection fails to
demonstrate debatability and is inadequate to deserve further
proceedings. See Lambright, 220 F.3d at 1025.
IS ORDERED that a certificate of appealability ...