                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 16, 2020
                                                                Christopher M. Wolpert
                                TENTH CIRCUIT                       Clerk of Court



UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 19-6147
v.
                                               (D.C. Nos. 5:17-CV-00207-M &
                                                  5:14-CR-00280-PRW-1)
DONOVAN GENE MERCER,
                                                        (W.D. Okla.)
       Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.



      This matter is before the court on Donovan Mercer’s counseled request for

a certificate of appealability (“COA”). He seeks a COA so he can appeal the

denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing

no appeal is allowed from a “final order in a proceeding under section 2255”

unless the movant first obtains a COA). Because he has not “made a substantial

showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies

Mercer’s request for a COA and dismisses this appeal.

      Following a jury trial, Mercer was convicted of three counts of accessing or

attempting to access a computer disk that contained child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). United States v. Mercer, 772

F. App’x 631, 633 (10th Cir. 2019) (Mercer II); United States v. Mercer, 653 F.

App’x 622, 624-25 (10th Cir. 2016) (Mercer I). This court affirmed Mercer’s

convictions on direct appeal. Mercer I, 653 F. App’x at 631. Mercer then filed

the instant § 2255 motion raising multiple claims. The district court denied relief.

Mercer II, 772 F. App’x at 632-33. On appeal, this court granted Mercer a COA

on two claims:

      (1) the prosecution submitted false evidence in Government Exhibit
      401 (GE 401), a summary exhibit listing the dates and times of
      downloads of files containing child pornography onto Mr. Mercer’s
      computer, and (2) his trial counsel acted ineffectively in failing to
      show him discovery from the government and in failing to pursue an
      alibi defense. These claims stem from Mr. Mercer’s contention that
      GE 401 incorrectly identified the times of the downloads.

Id. at 633. We then remanded these claims to the district court to conduct an

evidentiary hearing and resolve factual questions involving the accuracy of GE

401. Id. at 634-35, 637. On remand, after holding an evidentiary hearing, the

district court found, as a matter of fact, that the information set out in GE 401

was accurate. Because the evidence in GE 401 was not false, the district court

concluded (1) the government’s introduction of GE 401 at trial did not violate

Mercer’s constitutional rights, and (2) Mercer’s counsel did not provide

ineffective assistance by failing to work with Mercer to advance at trial an alibi

defense.


                                         -2-
      Mercer seeks a COA so he can appeal the district court’s resolution of his

claims relating to GE 401. The granting of a COA is a jurisdictional prerequisite

to Mercer’s appeal from the denial of his § 2255 motion. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). To be entitled to a COA, he must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make the requisite showing, Mercer must demonstrate “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. (quotations omitted). In

evaluating whether he has satisfied this burden, we undertake “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Id. at 338. Although he need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Mercer’s counseled combined application

for COA and opening brief, the district court’s order, and the entire record before

this court pursuant to the framework set out by the Supreme Court in Miller-El,

we conclude Mercer is not entitled to a COA. The correctness of the district

court’s factual findings, especially viewed under the highly deferential “clearly




                                         -3-
erroneous standard,” 1 is not reasonably subject to debate. Mercer’s assertion he

preserved challenges to “numerous evidentiary errors affecting the district

court’s” findings despite his failure to make contemporary objections is

completely without merit. See Appellant’s Combined Application for COA and

Amended Br. at 22. In support of the assertion he preserved for review

evidentiary errors on the part of the district court, Mercer cites to a brief passage

from the transcript at the close of the evidentiary hearing. Id. The identified

passage, however, cannot reasonably be construed as any kind of evidentiary-

based challenge to the testimony of the government’s witnesses. See App. Vol. II,

at 34. And Mercer’s assertion the district court plainly erred in admitting and

considering the government’s evidence is sufficiently lacking in merit so as to not

be deserving of further proceedings.

      Because Mercer has not made a substantial showing of the denial of a

constitutional right, he is not entitled to a COA. Accordingly his request for a

COA is DENIED and this appeal is DISMISSED.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge


      1
        See United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (holding
that the clear error standard applies to a district court’s factual findings in § 2255
proceedings).

                                          -4-
