United States v. Harris

FILED
United States Court of Appeals
Tenth Circuit

December 8, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 10-6194
(D.C. Nos. 5:08-CR-00094-M-1 and
STANLEY REMOND HARRIS, 5:10-CV-00078-M)
(W.D. Okla.)
Defendant-Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Petitioner Stanley Remond Harris, a federal prisoner proceeding pro se, 1

seeks to appeal from the district court’s denial of his motion to vacate, set aside,

or correct his sentence under 28 U.S.C. § 2255. Mr. Harris requests a certificate

*
This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

After examining the appellate record, this three-judge panel 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 case is therefore ordered submitted without oral argument.
1
Because Mr. Harris is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
of appealability (“COA”) from this court. Mr. Harris also requests leave to

proceed in forma pauperis (“IFP”) on appeal. Exercising jurisdiction under 28

U.S.C. §§ 1291 and 2253(a), we DENY Mr. Harris’s application for a COA,

DENY Mr. Harris’s renewed motion to proceed IFP as moot, and DISMISS his

appeal.

BACKGROUND

On October 22, 2008, Mr. Harris pleaded guilty, without a written plea

agreement, to possession of a firearm by a felon in violation of 18 U.S.C.

§ 922(g)(1). Following a sentencing hearing in the United States District Court

for the Western District of Oklahoma, Mr. Harris was sentenced to 120 months’

incarceration to be followed by three years’ supervised release, and required to

pay a $14,000 fine. He then filed a 28 U.S.C. § 2255 motion to vacate his

sentence, in which he alleged that his counsel rendered ineffective assistance

when he negotiated Mr. Harris’s plea.

The district court denied Mr. Harris’s motion in an order and judgment

issued on July 21, 2010, having found that (1) a miscalculation or erroneous

sentence estimation by defense counsel is not deficient performance rising to the

level of ineffective assistance; (2) Mr. Harris’s allegation that counsel failed to

adequately explain the U.S. Sentencing Guidelines Manual was meritless in light

of Mr. Harris’s indication in his Petition to Enter Plea that he understood the

Guidelines; (3) Mr. Harris had not shown that counsel’s failure to obtain a plea

2
agreement fell below an objective standard of reasonableness; (4) Mr. Harris’s

miscellaneous ineffective assistance of counsel claims consisted merely of

conclusory allegations; and (5) there was no need for an evidentiary hearing

because the record conclusively established that his allegations were meritless.

The district court also denied Mr. Harris’s motion to proceed IFP on appeal. Mr.

Harris now seeks the issuance of a COA from this court, which would authorize

him to appeal the district court’s denial of his 28 U.S.C. § 2255 motion.

DISCUSSION

To obtain a COA, an applicant must make a “substantial showing of the

denial of a constitutional right.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.

2009) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted). “To

make such a showing, an applicant must demonstrate ‘that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” Id. (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

Where a “COA application rests on claims of ineffective assistance of

counsel, in order to determine if [an applicant] can make a substantial showing of

the denial of a constitutional right we must undertake a preliminary analysis . . .

in light of the two-part test for ineffective assistance” articulated by the Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984). United States v. Harris,

3
368 F. App’x 866, 868 (10th Cir. 2010), cert. dismissed, No. 10-5205, 2010 WL

2679368.

To prevail on his ineffective assistance of counsel claim under Strickland, a

petitioner must show both that “his counsel’s performance was constitutionally

deficient, i.e, it fell below an objective standard of reasonableness” and that

“there is a reasonable probability that, but for counsel’s errors, the outcome of the

proceedings would have been different.” Moore v. Reynolds, 153 F.3d 1086,

1096 (10th Cir. 1998); accord Strickland, 466 U.S. at 687, 694. “[T]here is no

reason for a court deciding an ineffective assistance claim . . . to address both

components of the inquiry if the defendant makes an insufficient showing on

one.” Strickland, 466 U.S. at 697; see also Hooks v. Workman, 606 F.3d 715, 724

(10th Cir. 2010) (“[I]t is not always necessary to address both Strickland prongs.

In particular, if Hooks is unable to satisfy his burden under Strickland’s

prejudice prong, it is unnecessary to determine whether counsel’s performance

was deficient.”); Gilson v. Sirmons, 520 F.3d 1196, 1248 (10th Cir. 2008) (“We

find it unnecessary to address Gilson’s arguments, both of which focus on the

first Strickland prong, because we conclude, applying a de novo standard of

review, that Gilson cannot satisfy the second Strickland prong.”).

In his application for a COA, Mr. Harris only challenges the district court’s

second conclusion. Mr. Harris argues that his guilty plea was involuntary because

counsel “failed to adequately explain[] the consequences of entering [a guilty]

4
plea.” Aplt. Combined Opening Br. and Application for a COA at 6. More

specifically, Mr. Harris contends that his counsel failed to explain the “basic

mechanics” of the Sentencing Guidelines and failed to advise Mr. Harris that his

sentence could be enhanced under those Guidelines. Id.

Even if Mr. Harris could establish that his counsel’s alleged failure to

explain the consequences of pleading guilty and the ramifications of the

Sentencing Guidelines amounted to constitutionally deficient performance under

Strickland, he cannot establish that he was prejudiced by his counsel’s actions.

Under Hill v. Lockhart, 474 U.S. 52 (1985), a prisoner challenging his guilty plea

on ineffective assistance of counsel grounds must demonstrate that “there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Id. at 59. Mr. Harris, however,

offers nothing more than his own word that he would not have pleaded guilty but

for counsel’s actions, and conclusory allegations are insufficient to support an

ineffective assistance of counsel claim. See United States v. Fisher, 38 F.3d

1144, 1147 (10th Cir. 1994).

In sum, reasonable jurists would not debate whether Mr. Harris’s counsel

rendered ineffective assistance in negotiating Mr. Harris’s plea agreement at the

pre-trial stage, as Mr. Harris cannot meet the prejudice part of Strickland’s two-

part standard. We therefore deny Mr. Harris’s application for a COA. See Allen,

568 F.3d at 1199; 28 U.S.C. § 2253(c).

5
We also deny as moot Mr. Harris’s renewed motion to proceed IFP because

his appeal fees have already been paid.

CONCLUSION

For the foregoing reasons, we DENY Mr. Harris’s application for a COA,

DENY his request to proceed IFP as moot, and DISMISS his appeal.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge