United States v. Harms

                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                   PUBLISH
                                                                     JUN 10 2004
                   UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                           Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                     No. 03-6231
 v.

 DENNIS RICHARD HARMS,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
              (D.C. Nos. 02-CV-1711-C and 00-CR-164-C)


Richard A. Friedman, Appellate Section, Criminal Division, U.S. Department of
Justice, Washington, D.C. (Robert G. McCampbell, United States Attorney, and
Edward J. Kumiega, Assistant United States Attorney, Western District of
Oklahoma, on the brief), for Plaintiff - Appellee.

Vicki Mandell-King, Assistant Federal Public Defender (and Raymond P. Moore,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.


Before KELLY, ANDERSON, and HENRY, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Dennis Richard Harms appeals from the district
court’s denial of his § 2255 motion to vacate, set aside or correct his sentence.

Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a) and for the reasons

set forth below, we affirm.



                                    Background

      In December 2000, Mr. Harms pled guilty in district court to a two-count

indictment charging him with (1) using a computer linked to the internet to entice

a minor to engage in sexual activity, 18 U.S.C. § 2422(b), and (2) receipt of child

pornography that was transported in interstate commerce by computer, 18 U.S.C.

§ 2252A(a)(2)(B). He was sentenced to fifty-one months imprisonment on each

count, to be served concurrently, and two years of supervised release. R. Doc. 27.

He took no direct appeal from his sentence.

      Following Mr. Harms’s guilty plea and sentencing, the United States

Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S.

234 (2002). That decision held unconstitutional 18 U.S.C. § 2256(8)(A) and (D),

part of the Child Pornography Prevention Act of 1996 (CPPA). These provisions

purported to include in the definition of child pornography images created without

the involvement of actual children. 1 Finding that the prohibition of such “virtual”


      1
        Generally referred to as “virtual” child pornography, such images can be
created by using adults made to appear to be minors, or though the use of a
computer technology known as “morphing,” whereby innocent images of actual

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child pornography chilled protected adult-to-adult speech, the Court held that

such prohibitions violated the First Amendment. See Free Speech Coalition, 535

U.S. at 255.

      Subsequently, in December 2002, Mr. Harms filed a § 2255 motion in

district court seeking to have his conviction for receipt of child pornography

(count two of the indictment) vacated on the basis that the Court’s decision in

Free Speech Coalition should be applied retroactively to his case and that Free

Speech Coalition renders his guilty plea unknowing and involuntary. R. Docs. 28

& 29. The district court denied Mr. Harms’s motion, holding that he could not

make the necessary showing of cause and prejudice to overcome the procedural

bar against consideration of otherwise defaulted claims. R. Doc. 45. The district

court then denied a certificate of appealability (COA), noting that “whether

considered under the procedural bar scenario or on the merits there is no room for

debate on the validity of Defendant’s conviction and sentence.” R. Doc. 52 at 3.

In response to his request for a COA in this court, a single circuit judge granted a

COA to review the claims raised in Mr. Harms’s pro se brief. We affirm the

district court’s denial, finding no need to reach the retroactivity issue.




minors are altered to make it appear that the minors are engaged in sexually
explicit behavior. See Free Speech Coalition, 535 U.S. at 241-42.

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                                    Discussion

      When reviewing a district court’s denial of a § 2255 petition, we review

questions of law de novo and questions of fact for clear error. United States v.

Pearce, 146 F.3d 771, 774 (10th Cir. 1998). We review the district court’s refusal

to hold an evidentiary hearing for an abuse of discretion. United States v.

Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002).

A.    Jurisdictional Concerns

      As a preliminary matter, we must address the government’s argument that

the COA in this case should be dismissed as improvidently granted. Specifically,

the government contends that the only issues raised in Mr. Harms’s pro se brief

were (1) whether Free Speech Coalition renders § 2252A unconstitutional in its

entirety, and (2) whether counsel was ineffective for failing to advise Mr. Harms

of this potential claim. Accordingly, the government argues that because our

holding in United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003), conclusively

determined that Free Speech Coalition only invalidated § 2252A as applied to

virtual child pornography, the district court’s resolution of Defendant’s claim

does not meet the standard for issuance of a COA. See Slack v. McDaniel, 529

U.S. 473, 484 (2000) (holding that in order to merit a COA “[p]etitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”).


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      Although we have stated that “an erroneously-issued certificate does not

deprive us of jurisdiction to hear a certified appeal,” United States v. Talk, 158

F.3d 1064, 1068 (10th Cir. 1998), the government points out that Talk viewed the

COA as non-jurisdictional, a view that is no longer correct under Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). See also United States v. Magallanes, 301

F.3d 1267, 1269 (10th Cir. 2002) (“a COA is an issue-by-issue jurisdictional

prerequisite to a merits determination on appeal”). In Lafevers v. Gibson, 182

F.3d 705, 711 (10th Cir. 1999), also decided prior to Miller-El, we held that we

were obligated to hear issues on the merits once a COA had been granted by the

district court. But see Phelps v. Alameda, 366 F.3d 722, 728 (9th Cir. 2004);

Buie v. McAdory, 322 F.3d 980, 982 (7th Cir. 2003). We express no opinion on

whether a merits panel has the power to dismiss an appeal based upon an

improvident grant of a COA because we reject the government’s argument that

the COA was improvidently granted.

      Here, the government urges us to consider the claim raised in Mr. Harms’s

motion as completely foreclosed by Kimler. It also contends that our review

should be limited to the same issue contained in Mr. Harms’s pro se brief, not the

reformulated (and stronger) claims presented by his appointed counsel. See

Aplee. Br. at 18-22. Given our liberal construction of pro se pleadings and the

wording of the grant of COA, we think the COA is broad enough to encompass


                                         -5-
the claims as articulated by Mr. Harms’s capable counsel. Moreover, his claims,

both as set forth by him in the opening brief and as expressed by counsel in the

supplemental brief, make the same basic argument, namely that had Mr. Harms

been aware that possession of virtual child pornography was not a criminal

offense, he would not have pled guilty. Accordingly, the precise issues presented

for our review are: (1) whether Free Speech Coalition renders Defendant’s guilty

plea unknowing and involuntary; and (2) whether counsel was ineffective for

failing to advise Defendant of the distinction between actual and virtual child

pornography.

B. Ineffective Assistance of Counsel

      Because Mr. Harms pled guilty and took no direct appeal from his sentence,

we must first consider whether he can demonstrate sufficient grounds to overcome

the procedural bar against consideration of defaulted claims. See United States v.

Frady, 456 U.S. 152, 165 (1982). This requires a showing of cause for the

procedural default and prejudice, or a fundamental miscarriage of justice. If Mr.

Harms cannot overcome the procedural bar, we may not reach the merits of his

claim that his plea was unknowing and involuntary. Id.

      The Supreme Court has “long and consistently affirmed that a collateral

attack may not do service for an appeal.” Id. Consequently, on petitions for

collateral relief, courts generally will not consider the merits of claims that were


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raised neither at trial nor on direct appeal. See id. at 166; United States v.

Salazar, 323 F.3d 852, 855 (10th Cir. 2003). One pertinent exception to that rule

is if Defendant can show both cause for the default and that failure to consider the

claim would result in actual prejudice to his defense, the court may reach the

merits of his otherwise defaulted claims. See Bousley v. United States, 523 U.S.

614, 622 (1998).

      A meritorious claim of ineffective assistance of counsel constitutes cause

and prejudice for purposes of surmounting the procedural bar. United States v.

Horey, 333 F.3d 1185, 1187 (10th Cir. 2003). Consequently, if Mr. Harms can

demonstrate that he received ineffective assistance of counsel, he will have

established the requisite cause and prejudice to overcome application of the

procedural bar.

      A successful claim of ineffective assistance of counsel must meet the two-

prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a

defendant must show that his counsel’s performance was deficient in that it “fell

below an objective standard of reasonableness.” Id. at 688. Second, a defendant

must show that counsel’s deficient performance actually prejudiced his defense.

Id. at 687. In the context of a guilty plea, the prejudice prong requires a

defendant to show that “but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59


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(1985).

      Mr. Harms contends that he received ineffective assistance of counsel

because his attorney failed to advise him of a potential distinction between actual

and virtual child pornography before advising him to plead guilty to count two of

the indictment. See Aplt. Supp. Br. at 21-22. To be sure, at the time he entered

his plea, courts of this and other circuits had considered (and most had rejected)

the argument that criminalization of virtual child pornography violated the First

Amendment. See United States v. Mento, 231 F.3d 912, 917 (4th Cir. 2000);

United States v. Acheson, 195 F.3d 645, 650-51 (11th Cir. 1999); United States v.

Pearl, 89 F. Supp. 2d 1237, 1244 (D. Utah 2000). But see Free Speech Coalition

v. Reno, 198 F.3d 1083, 1090-91 (9th Cir. 1999), aff’d, Free Speech Coalition,

supra (holding criminalization of virtual child pornography violated First

Amendment). The question here, however, is whether such a failure rises to the

level of constitutionally ineffective assistance. We conclude it does not.

       The Sixth Amendment does not require counsel for a criminal defendant to

be clairvoyant. See United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th

Cir. 1995); see also Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002)

(“[C]ounsel’s performance is not deficient by failing to predict future

developments in the law.”) (quoting Wajda v. United States, 64 F.3d 385, 388

(8th Cir. 1995)). Nor does the Sixth Amendment require counsel to raise, or even


                                        -8-
be cognizant of, all potential defenses. Rather, the Constitution only requires that

counsel’s assistance “fall[] within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689. Precedent from both the Supreme Court

and our sister circuits clearly holds that counsel’s failure to raise or recognize a

potential legal argument does not automatically render counsel’s performance

constitutionally deficient. “[T]he constitution guarantees criminal defendants

only a fair trial and a competent attorney. It does not insure that defense counsel

will recognize and raise every conceivable constitutional claim.” Murray v.

Carrier, 477 U.S. 478, 486 (1986); see Pitts v. Cook, 923 F.2d 1568, 1574 (11th

Cir. 1991) (“A counsel’s pre-Batson failure to raise a Batson-type claim does not

fall below reasonable standards of professional competence, and thus does not

render counsel’s assistance constitutionally ineffective.”). This court has also

recognized that counsel’s failure to recognize a potential legal argument does not

constitute cause for a procedural default. Hopkinson v. Shillinger, 954 F.2d 609,

610 (10th Cir. 1992). We therefore hold that under these circumstances counsel’s

performance was not deficient solely because he failed to apprise Mr. Harms of

the potential distinction between actual and virtual child pornography, particularly

since it never appears to have been a factual issue in the case.

      Nor can Mr. Harms demonstrate actual prejudice as a result of his counsel’s

performance. As noted, in order to demonstrate prejudice, he must show that had


                                          -9-
he received reasonable professional assistance from counsel he would not have

pled guilty, but would have elected to go to trial. Hill, 474 U.S. at 59; Fields v.

Gibson, 277 F.3d 1203, 1215 (10th Cir. 2002). The burden of making such a

showing lies with the defendant, see United States v. Gordon, 4 F.3d 1567, 1571

(10th Cir. 1993), and in this case Mr. Harms has neither cited to nor put forth

evidence tending to show that had he been advised of a distinction between actual

and virtual child pornography, he would have elected to proceed to trial.

Although we recognize his best evidence in this regard, namely the images

themselves, are no longer in his possession and are not included in the record, 2

Mr. Harms never claimed that all the many images that he possessed are of virtual

child pornography. Rather, he impermissibly attempts to shift the burden on this

point to the government by claiming that there is no evidence in the record that he

would not have gone to trial had he been informed of the distinction. See Aplt.

Reply. Br. at 12-13. On this basis he argues an entitlement to an evidentiary

hearing to determine the true nature of the images.

      In support of his argument, he relies principally upon our holding in United

States v. Glover, 97 F.3d 1345 (10th Cir. 1996). Glover, a drug case, involved a

contested sentencing hearing at which the government bore the burden of proving


      2
        At oral argument the Assistant United States Attorney represented to the
court that the images had recently been destroyed and are thus no longer available
for examination in any event.

                                         - 10 -
the type of methamphetamine involved. Without offering any supporting

evidence, the prosecution simply averred that the conspiracy involved the more

serious D-methamphetamine, and defense counsel raised no objection. Id. at

1348. In their subsequent § 2255 petition to this court, defendants claimed that

they received ineffective assistance of counsel because their attorneys had failed

to put the government to its proof regarding the sentence enhancing elements.

This court agreed noting that “[w]hen counsel has unwittingly relieved the

government of its burden of proof . . . it is fair to say counsel has so undermined

the proper functioning of the adversarial process that it cannot be relied upon as

having produced a just result.” Id. at 1349 (internal quotation marks and citation

omitted). This court remanded for an evidentiary hearing to determine the type of

methamphetamine involved.

      Glover, however, is readily distinguishable. Because the focus of this case

is an uncontested guilty plea, the government had no burden of which it was

unwittingly relieved by Defendant’s counsel. Further, we have held “that Free

Speech Coalition, did not establish a broad, categorical requirement that, in every

case on the subject, absent direct evidence of identity, an expert must testify that

the unlawful image is of a real child.” United States v. Kimler, 335 F.3d 1132,

1142 (10th Cir. 2003). Certainly as here where no evidence suggests that the

images are anything other than real, the government need offer no supporting


                                         - 11 -
evidence beyond the images themselves. Consequently, there is no need for an

evidentiary hearing to delve further into the nature of the images Defendant

possessed.

      Because we have determined that Mr. Harms cannot show ineffective

assistance of counsel and has thus failed in his gateway claim, we need not

determine whether retroactive application of Free Speech Coalition is appropriate

and whether such application would render his guilty plea unknowing and

involuntary. For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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