Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 3, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-5033
(D.C. Nos. 4:19-CV-00716-CVE-CDL &
KERRY SLOAN, 4:18-CR-00205-CVE-1)
(N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before TYMKOVICH, Chief Judge, MORITZ, and ROSSMAN, Circuit Judges.
_________________________________
Kerry Sloan, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to challenge the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. We deny his application for a COA
and dismiss this matter.
I. Background
Sloan pleaded guilty in federal court to one count of transporting a minor in
interstate commerce with intent to engage in criminal sexual activity, in violation of
18 U.S.C. § 2423(a). He was sentenced to 180 months in prison and ten years of
This order is not binding precedent except under the doctrines of law of the case,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.
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supervised release. His plea agreement contained a waiver of his right to collaterally
attack his conviction and sentence in a § 2255 proceeding, except for claims of
ineffective assistance of counsel. Although represented by an attorney throughout the
criminal proceedings, Sloan filed a pro se notice of appeal. This court dismissed the
appeal as untimely.
Sloan then filed a pro se § 2255 motion and a multitude of supplements,
supporting declarations, and other documents, seeking relief on multiple grounds. The
government argued that many of Sloan’s claims fell within the scope of his plea waiver
and that his ineffective-assistance claims failed on the merits.
The district court analyzed the enforceability of the waiver under United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Under Hahn,
post-conviction waivers are enforceable if the disputed issue “falls within the scope of the
waiver,” “the defendant knowingly and voluntarily waived his [post-conviction] rights,”
and “enforcing the waiver would [not] result in a miscarriage of justice.” 359 F.3d
at 1325; see also United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (applying
Hahn analysis to § 2255 proceeding). The district court determined Sloan’s waiver was
knowing and voluntary and his substantive claims fell within the scope of the waiver,
including those concerning speedy trial and grand jury violations, illegal search and
seizure, double jeopardy, malicious prosecution, and the validity of the certification of
certain Assistant United States Attorneys. The court concluded Sloan had made no
attempt to show that enforcing the waiver would result in a miscarriage of justice, and the
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court’s own review uncovered no evidence that enforcing the waiver as to those claims
within its scope would be unfair or inequitable.
The district court next determined Sloan’s claims of ineffective assistance of
counsel fell outside the waiver, but denied relief on the merits, applying the standard of
Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a demonstration that
counsel’s performance was deficient and the deficient performance was prejudicial.
The court first rejected Sloan’s claim that counsel should have argued the
§ 2423(a) conviction was invalid and unconstitutional because the government did not
prove that § 2423(a) qualifies as a “crime of violence.” The court explained that the
commission of a “crime of violence” is not an element of a § 2423(a) offense, so counsel
had no reason to raise the argument.1 The court also rejected Sloan’s reliance on United
States v. Davis, 139 S. Ct. 2319 (2019), and other Supreme Court cases concluding that
certain other statutes are void for vagueness. The district court explained that unlike the
statutory provisions at issue in those cases, § 2423(a) clearly defines what it prohibits—
the knowing transportation of a minor in interstate commerce with the intent to engage in
1
Section 2423(a) provides:
A person who knowingly transports an individual who has not attained the
age of 18 years in interstate or foreign commerce, or in any commonwealth,
territory or possession of the United States, with intent that the individual
engage in prostitution, or in any sexual activity for which any person can be
charged with a criminal offense, shall be fined under this title and
imprisoned not less than 10 years or for life.
18 U.S.C. § 2423(a).
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sexual activity for which any person could be charged with a criminal offense. The court
further rejected Sloan’s vagueness challenge to sentencing enhancements applied in his
case given the Supreme Court’s holding in Beckles v. United States, 137 S. Ct. 886, 890
(2017), that “the advisory [United States Sentencing] Guidelines are not subject to
vagueness challenges.”
The district court next found meritless Sloan’s argument that counsel should have
demanded that the district court read all the conditions of supervised release into the
record at the sentencing hearing. The court concluded there is no requirement that the
court read mandatory or standard conditions of supervised release into the record, and the
record reflected that the court had orally advised Sloan at the sentencing hearing of any
special or discretionary conditions.2
The district court also denied relief on Sloan’s claim that counsel should have
argued for a sentence reduction based on an excessive disparity between Sloan’s sentence
and sentences received by other defendants in similar cases. This argument, the court
explained, overlooked that Sloan had pleaded guilty and that the court had sentenced him
to a within-Guidelines sentencing range that the parties had agreed to. Therefore, the
court concluded trial counsel had acted reasonably in declining to request a downward
variance based on excessive sentencing disparity.
2
In support of these conclusions, the district court relied on United States v.
Diggles, 957 F.3d 551 (5th Cir.) (en banc), cert. denied, 141 S. Ct. 825 (2020). In
Diggles, the Fifth Circuit held that the only conditions of supervised release a court must
pronounce at sentencing are those that are discretionary under the supervised-release
statute, 18 U.S.C. § 3583(d). 957 F.3d at 559.
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Next, the district court considered Sloan’s claim that counsel was ineffective in
failing to file a direct appeal despite being advised to do so. The court summarized the
evidence regarding this claim as follows: Sloan contended that when counsel met with
him to see if he wanted to file an appeal, Sloan was “nonresponsive and highly
medicated.” R., Vol. VII at 322 (internal quotation marks omitted). But counsel averred
Sloan was “polite and responsive,” and if Sloan had been “unresponsive,” counsel would
have filed a notice of appeal as a precaution. Id. at 323 (internal quotation marks
omitted). Counsel’s affidavit and declaration were “clear” that counsel believed Sloan
“understood the advice that [counsel] offered concerning the advantages and
disadvantages of filing an appeal,” and counsel “understood that [Sloan] made an
informed decision not to proceed with an appeal.” Id. at 324. Nothing in the record
indicated that Sloan had asked counsel to file an appeal within the time limit. Further,
when the government moved to dismiss Sloan’s pro se appeal as untimely, counsel
responded to the motion that he was unaware of any applicable exceptions to the time
bar.
Based on this evidence, the district court concluded counsel’s performance was
not constitutionally deficient for failing to file a notice of appeal. See Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (“[A] lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is
professionally unreasonable.”). The court further determined counsel was not obligated
to raise frivolous arguments in support of Sloan’s untimely pro se notice of appeal.
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Finally, the district court denied relief on Sloan’s claims regarding his guilty plea.
The court concluded that although there could be a factual dispute concerning whether
Sloan told counsel he wanted to withdraw his guilty plea, Sloan could not show prejudice
by the alleged failure to file a motion to withdraw the plea because he had not shown any
probability the court would have granted such a motion. The court explained that despite
“vague assertions [in his § 2255 filings] that could be construed as a claim of factual
innocence,” Sloan had “admitted the essential elements of the offense at the change of
plea hearing and nothing in his filings can be construed as an attempt to withdraw his
factual admissions.” R., Vol. VII at 328. The change-of-plea hearing was “lengthy . . . ,
and the Court had no concerns as to the knowing and voluntary nature of his guilty plea.”
Id. Sloan also had delayed seeking to withdraw his plea until just before sentencing, so
granting a motion to withdraw the plea would have inconvenienced the parties and the
court. The court also considered Sloan’s claim that counsel failed to consult with him
about an earlier plea offer where he would serve only 24 months in prison. Counsel had
informed Sloan that no such offer had been made and reminded him that he had rejected a
previous offer for the mandatory minimum sentence under § 2423(a)—120 months.
Because counsel had conveyed the original plea offer and Sloan had rejected it, the court
found Sloan’s failure-to-consult claim meritless.
Based on its analysis, the district court denied Sloan’s § 2255 motion. The court
also denied a COA.
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II. Discussion
Before he may appeal, Sloan must obtain a COA. 28 U.S.C. § 2253(c)(1)(B). To
obtain a COA on claims the district court denied on the merits, a petitioner must make “a
substantial showing of the denial of a constitutional right,” § 2253(c)(2), such 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) (internal quotation
marks omitted). We construe Sloan’s pro se filings liberally but do not act as his
advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
In his COA application, Sloan does not challenge the district court’s conclusion
that the collateral-review waiver was enforceable or that his substantive claims fell within
the scope of that waiver. However, he maintains his counsel was constitutionally
ineffective under the two-part Strickland test and that reasonable jurists could disagree
with the district court’s denial of his claims. He also asserts the district court improperly
decided disputed factual issues. We disagree and conclude the district court properly
resolved Sloan’s motion.
To the extent Sloan argues the merits of substantive claims he raised in the district
court or contends the district court overlooked such claims, they are subject to the plea
waiver, the enforceability of which he has not challenged. His complaint that the district
court overlooked some of his ineffective-assistance claims lacks sufficient development
to merit appellate review. See Christian Heritage Acad. v. Okla. Secondary Sch.
Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007) (“Where an appellant lists an
issue, but does not support the issue with argument, the issue is waived on appeal.”).
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And his suggestions that the district judge had a conflict of interest are unsubstantiated
conclusions.
Sloan also makes conclusory assertions that are either of uncertain relevance to the
denial of his § 2255 motion or plainly frivolous.
Regardless of Sloan’s limited argument, and having independently reviewed the
record, Sloan’s appellate submissions,3 and the applicable law, we are confident that
reasonable jurists could not debate the correctness of the district court’s disposition of
Sloan’s § 2255 motion. Accordingly, we deny a COA and dismiss this matter.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
3
In addition to his combined COA application and opening brief, Sloan has
submitted additional documents to this court.
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