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

                                       TENTH CIRCUIT                 December 18, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
    UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
    v.                                                     No. 13-5102
                                               (D.C. Nos. 4:11-CV-00687-JHP-TLW
    JOHN LAWRENCE STANLEY,                         and 4:09-CR-00022-JHP-1)
                                                           (N.D. Okla.)
               Defendant - Appellant.



                            ORDER DENYING A
                      CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. John Lawrence Stanley was convicted on two counts of armed bank

robbery and two counts of possession of a firearm in furtherance of a crime of

violence. He moved to vacate the sentence under 28 U.S.C. § 2255, and the

district court denied the motion. He appeals, but we can entertain the appeal only

if Mr. Stanley is entitled to a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(B) (2006). Holding that he is not entitled to a certificate, we

dismiss the appeal.

*
       The present order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. The order may
be cited, however, for its persuasive value under Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                    Standard for a Certificate of Appealability

      To obtain a certificate of appealability, Mr. Stanley must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2006). This showing exists only if “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.’” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

            Mr. Stanley’s Arguments for a Certificate of Appealability

      Mr. Stanley argues that he is entitled to a certificate of appealability for

three reasons: (1) The district court failed to determine whether his waiver of

legal representation was voluntary or knowing; (2) defense counsel was

ineffective by failing to seek a second mental-health evaluation; and (3) the

district court’s application of a sentencing enhancement violated his right to a

jury trial in light of the Supreme Court’s decision in Alleyne v. United States, __

U.S. __, 133 S. Ct. 2151 (2013). We conclude that Mr. Stanley’s arguments are

not reasonably debatable.



                     Issue 1: Waiver of the Right to Counsel

      In his § 2255 motion, Mr. Stanley argued that the district court failed to

determine whether he voluntarily and knowingly waived his right to counsel. See
                                          2
Faretta v. California, 422 U.S. 806, 835 (1975). This argument is subject to

procedural default.

      A defendant is procedurally barred from making a claim under § 2255 if it

was not raised in the direct appeal “unless he can show cause for his procedural

default and actual prejudice resulting from the alleged errors, or can show that a

fundamental miscarriage of justice will occur if his claim is not addressed.”

United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Mr. Stanley conceded

that he failed to raise the issue on direct appeal, so we must evaluate whether the

procedural default is excusable.

      Mr. Stanley does not give an excuse for his procedural default. But

liberally construed, 1 Mr. Stanley’s filings could be read to suggest a fundamental

miscarriage of justice if we do not address his claim. Even with this liberal

reading, however, we would conclude that the claim is procedurally barred.

      This claim is based on Faretta v. California, 422 U.S. 806 (1975). There,

the Supreme Court held that a trial court must verify that a defendant knowingly

and voluntarily waives the benefit of counsel before he may represent himself.

Faretta v. California, 422 U.S. 806, 835-36 (1975). The district court can ask

questions about the defendant’s mental health to verify that his decision to waive




1
      We liberally construe Mr. Stanley’s pleadings because of his pro se status. See
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
                                           3
legal representation is knowing and voluntary. See Fitzpatrick v. Wainwright,

800 F.2d 1057, 1065 (11th Cir. 1986).

      Mr. Stanley chose to represent himself. Though the district court asked

about that choice and suggested that Mr. Stanley accept legal representation, he

argues the inquiry was insufficient because of his mental-health issues.

      We reject this argument. The district court asked Mr. Stanley to determine

whether he knowingly and intelligently waived his right to counsel. Mr. Stanley

assured the court: “I feel like I’m mentally healthy at this time. I do have

depression. As long as I get my medication, I don’t have a problem. And they’ve

been giving it to me without a problem.” R. Vol. I, at 97 (quoting June 26, 2009

Hr’g Tr. at 9). And a psychological evaluation verified that he was mentally fit

to stand trial despite his symptoms of mental illness. Pet’r’s Br. add. at 7.

      The district court properly concluded that its colloquy with Mr. Stanley had

established a knowing and intelligent waiver of his right to counsel. Thus, we

conclude that the present claim is procedurally barred.

                    Issue 2: Ineffective Assistance of Counsel

      According to Mr. Stanley, his mental health was inadequately investigated

by his attorney. The district court rejected this argument, noting that: (1) the

public defender had retained a psychologist to conduct an extensive mental health

evaluation, (2) the public defender had represented Mr. Stanley for only a short

time after receipt of the psychologist’s report, and (3) Mr. Stanley had not asked
                                          4
for a second mental health evaluation after choosing to represent himself.    The

district court’s explanation is not reasonably debatable.

      An ineffective-assistance claim has two elements: (1) The representation

must be deficient, and (2) the deficiency must be so serious that it deprived the

petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

      The psychologist concluded that Mr. Stanley was competent because his

“expressed thoughts were easy to understand and were fairly logical.” Pet’r’s Br.

add. at 7. The record does not suggest any reason for defense counsel to question

this evaluation. Thus, defense counsel’s decision not to order a second

evaluation was reasonable. See Elam v. Denney, 662 F.3d 1059, 1066 (8th Cir.

2011) (“Even when the initial evaluation by a mental health expert has failed to

support a competency or insanity defense, we have repeatedly rejected ineffective

assistance claims based upon counsel’s failure to obtain and present testimony by

additional mental health experts.”); Williams v. Head, 185 F.3d 1223, 1242 (11th

Cir. 1999) (“Strategic decisions, such as the one [defense counsel] made not to

request another mental evaluation of [the habeas petitioner], are virtually

unassailable, especially when they are made by experienced criminal defense

attorneys.”).

      And even if a failure to order a second evaluation was deficient, Mr.

Stanley fails to show prejudice from the lack of a second mental-health

evaluation. See Gaskey v. Hartley, 280 F. App’x 746, 748 (10th Cir. 2008)
                                         5
(denying a certificate of appealability, reasoning that the petitioner did not show

prejudice from defense counsel’s failure to order a mental evaluation).

       We conclude that the ineffective-assistance claim is not reasonably

debatable.

                    Issue 3: Sentencing Reduction under Alleyne
       Mr. Stanley also sought a reduction in his sentence based on the Supreme

Court’s decision in Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151 (2013).

The district court rejected the claim, and Mr. Stanley challenges this ruling. We

conclude that Mr. Stanley’s claim is not reasonably debatable.

       After the § 2255 motion was fully briefed, Mr. Stanley wrote to the district

court and added the Alleyne claim. In this letter, he claimed enhancement of his

sentence under “18 USC 92(c)(1)(C)(i).” Letter by John Lawrence Stanley to

United States District Court (June 26, 2013), ECF No. 113. There is no such

section in the United States Code. Thus, our threshold task is to determine what

Mr. Stanley had intended.

       To make this determination, we can take judicial notice of the presentence

report. 2 This report reflected a finding of guilt on 18 U.S.C. § 924(c)(1)(C)(i),

which triggers a mandatory minimum sentence of 25 years for a second or

subsequent conviction. 18 U.S.C. § 924(c)(1)(C)(i) (2006). The Supreme Court

has held that a prior conviction need not be submitted to the jury, and the Alleyne
2
      The district court adopted the presentence report as “the factual basis for the
sentence.” Sent. Tr. at 6, Oct. 28, 2009, ECF No. 76.
                                            6
Court left this holding in place. Almendarez-Torres v. United States, 523 U.S.

224, 247 (1998); Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2160 n.1

(2013). Thus, we have denied a certificate of appealability when the movant

argued that Alleyne retroactively applied to invalidate a judge’s finding regarding

a prior conviction. United States v. Goodwin, No. 13-3177, __ F. App’x __, 2013

WL 5509175, at *1 (10th Cir. Oct. 7, 2013). This opinion is persuasive, and we

deny a certificate of appealability to Mr. Stanley for the same reason: Even if

Alleyne were to apply retroactively, it would not have required the district court

to submit the existence of a prior conviction to the jury.

                                    Conclusion

      Mr. Stanley has not made a substantial showing of the denial of a




constitutional right. Thus, we deny his request for a certificate of appealability

and dismiss the appeal.



                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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