United States v. Gabourel

Appellate Case: 22-6190 Document: 010110817548 Date Filed: 02/24/2023 Page: 1

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 24, 2023

_________________________________

Christopher M. Wolpert

Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, v. No. 22-6190

(D.C. Nos. 5:22-CV-00598-D & LARENZO GABOUREL, 5:15-CR-00172-D-2)

(W.D. Okla.) Defendant - Appellant.

_________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ Before MATHESON, BRISCOE, and EID, Circuit Judges.

_________________________________ Larenzo Gabourel, a federal prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.1 See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal an order denying a § 2255 motion). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Gabourel’s request for a COA and dismiss this matter.

I. BACKGROUND A. Underlying Criminal Case

A federal grand jury indicted Mr. Gabourel for (1) conspiracy to possess with intent to distribute phencyclidine (“PCP”), (2) possession of PCP with intent to distribute (or aiding and abetting the same), and (3) possessing a firearm in furtherance of a drug trafficking crime. A jury found him guilty of all charges. The district court sentenced him to 180 months in prison. See United States v. Gabourel, 692 F. App’x 529, 533-34 (10th Cir. 2017) (unpublished).

On direct appeal, Mr. Gabourel argued the evidence was insufficient to support his convictions. Id. at 531. In June 2017, we affirmed, noting that “Mr. Gabourel ha[d] failed to show that no rational juror could have convicted him of” the charged offenses based on the evidence adduced at trial. Id. at 549.

B. Section 2255 Motion

In July 2022, Mr. Gabourel moved for relief under § 2255 claiming he had obtained new exculpatory evidence: Mr. Alvin Norman’s sworn statement dated January 17, 2022 “attesting to [Mr. Gabourel’s] alleged innocence of all charges and explaining [Mr. Gabourel’s] presence at the apartment where PCP was kept and his association with the codefendants selling PCP.” ROA, Vol. IV at 103.2 Mr. Norman was a codefendant and had fled prosecution. He was a fugitive at the time of Mr. Gabourel’s trial. He later pled guilty to a drug distribution charge. Id. at 102, 104.

The district court denied Mr. Gabourel’s § 2255 motion because (1) he “assert[ed] only a freestanding claim of actual innocence, which cannot provide a substantive basis for relief from his convictions,” id. at 105; and (2) his new evidence failed to establish actual innocence, id. at 105-06. The court also denied Mr. Gabourel a COA. Id. at 107.

II. DISCUSSION

A federal prisoner must obtain a COA to appeal a denial of habeas relief. 28 U.S.C. § 2253(c)(l)(B). A COA requires “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The movant must demonstrate “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Mr. Gabourel argues that new evidence demonstrating actual innocence entitles him to relief. Actual innocence may allow habeas review of procedurally-barred constitutional claims, but neither the Supreme Court nor this court has recognized it as a freestanding ground for relief. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404; see LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001) (“[A]n assertion of actual innocence, although operating as a potential pathway for reaching otherwise defaulted constitutional claims, does not, standing alone, support the granting of the writ of habeas corpus.”); see also Farrar v. Raemisch, 924 F.3d 1126, 1130-31 (10th Cir. 2019).

Mr. Gabourel, citing McQuiggin v. Perkins, 569 U.S. 383 (2013), argues “the Supreme Court has made clear . . . that a[n innocence] claim such as [his] should be avai[l]able through habeas corpus.” Aplt. Br. at 7. But in McQuiggin, the Court said it had “not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” 569 U.S. at 392; see also Case v. Hatch, 731 F.3d 1015, 1036 (10th Cir. 2013) (“[I]n Herrera, the Court refused to endorse [a freestanding actual innocence] habeas claim, and, as yet, it is an open question whether such a federal right exists.”).

We have consistently denied habeas relief based on actual innocence alone. See, e.g., Farrar, 924 F.3d at 1131 (“[A]ctual innocence does not constitute a freestanding basis for habeas relief.”); Vreeland v. Zupan, 906 F.3d 866, 883 n.6 (10th Cir. 2018) (same) (citing LaFevers, 238 F.3d at 1265 n.4); United States v. Toki, 822 F. App’x 848, 853-54 (10th Cir. 2020) (unpublished) (applying the same in a § 2255 proceeding) (cited for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A)), vacated on other grounds, sub nom. Maumau v. United States, 142 S.Ct. 57 (2021).3

Mr. Gabourel has not shown that jurists of reason could disagree with the district court’s denial of his § 2255 motion.4

III. CONCLUSION

We deny Mr. Gabourel’s application for a COA and dismiss this matter.

Entered for the Court Scott M. Matheson, Jr. Circuit Judge