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

                                    TENTH CIRCUIT                            August 13, 2013

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                           No. 13-1034
                                                 (D.C. Civ. No. 1:12-CV-00700-CMA)
                                               (D.C. Crim. No. 1:07-CR-00175-CMA-1)
ANDRE STANLEY, a/k/a Sincere, a/k/a                           (D. Colo.)
Cere,

       Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Andre Stanley, a federal prisoner appearing pro se,1 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. He also seeks leave to




       * This order is not binding precedent, except under the doctrines of law of the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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         Because Mr. Stanley is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).
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proceed in forma pauperis. Exercising jurisdiction under 28 U.S.C. § 1291, we deny

both requests and dismiss this matter.

                                    I. BACKGROUND

       Mr. Stanley was convicted by a jury in the district court of two counts of

possession with intent to distribute more than 5 grams of “crack” cocaine, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B), and four counts of using a communication facility in

the commission of a felony drug offense, in violation of 21 U.S.C. § 843(b). He was

sentenced to 48 months in prison for each communication conviction and 120 months in

prison for each possession conviction, to run concurrently. He appealed, and this court

affirmed his conviction. United States v. Stanley, 396 F. App’x 482 (10th Cir. 2010).

       After his unsuccessful appeal, Mr. Stanley filed a 28 U.S.C. § 2255 motion in the

district court to vacate his sentence, raising three grounds for relief. He argued that (1)

the Government engaged in vindictive prosecution by adding charges to superseding

indictments after he alleged prosecutorial misconduct and invoked his constitutional

rights to a jury trial and a speedy trial; (2) his trial counsel was ineffective because he did

not raise the vindictive prosecution allegation; (3) his appellate counsel was ineffective

for failing to allege vindictive prosecution on direct appeal.

       The district court ruled that Mr. Stanley’s “three claims are inherently

interdependent.” ROA at 154. It determined that Mr. Stanley’s first claim was

procedurally barred because he failed to raise it on direct review. Nonetheless, the court

reviewed the vindictive prosecution claim because Mr. Stanley’s two ineffective

assistance of counsel claims depended on it. To prevail on his ineffective assistance

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claims, Mr. Stanley needed to “demonstrate that it [wa]s reasonably probable that the

underlying vindictive prosecution claim would have been successful” and therefore

would have changed the outcome of his case. Id. at 155; see also Strickland v.

Washington, 466 U.S. 668, 694 (1984) (holding that, in addition to showing deficient

performance, a movant asserting an ineffective assistance of counsel claim must show

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

result of the proceeding would have been different”).

       The district court determined that Mr. Stanley’s vindictive prosecution claim

lacked merit. It first found that Mr. Stanley had failed to offer proof of “actual

vindictiveness.” ROA at 156 (quoting United States v. Sarracino, 340 F.3d 1148, 1177

(10th Cir. 2003)). The district court then addressed whether there was “‘a realistic

likelihood of vindictiveness which will give rise to a presumption of vindictiveness.’” Id.

(quoting Sarracino, 340 F.3d at 1177).

       The district noted Supreme Court decisions refusing to recognize a presumption of

vindictiveness for certain pretrial Government actions. See Bordenkircher v. Hayes, 434

U.S. 357, 363-64 (1978) (holding that a presumption of vindictiveness did not apply to

the back and forth negotiations of plea bargains if there is probable cause for the charges

and the defendant may accept or reject the offer); United States v. Goodwin, 457 U.S.

368, 382-84 (1982) (holding that the presumption of vindictiveness did not apply when

the Government brought a felony indictment after the defendant refused to plead guilty to

misdemeanor charges and demanded a jury trial). The district court found that Mr.

Stanley’s argument that the Government acted vindictively by adding charges to his

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indictment after he refused to plead guilty and cooperate was “not genuinely

distinguishable from those of Bordenkircher or Goodwin” and therefore the presumption

of vindictiveness did not apply. ROA at 161. Consequently, Mr. Stanley could not

prevail on his ineffective assistance of counsel claims. The court denied his motion and

refused to issue a COA.

                                     II. DISCUSSION

       Mr. Stanley now seeks a COA to challenge the district court’s order denying his

§ 2255 petition. Mr. Stanley requests that we grant a COA on his ineffective assistance

of counsel claims and his vindictive prosecution claim.

       A COA is a jurisdictional prerequisite for appeal from the district court’s dismissal

of his § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); United States v. Gonzalez, 596

F.3d 1228, 1241 (10th Cir. 2010). To obtain a COA, Mr. Stanley must make “a

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

also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He may do this by “showing that

reasonable jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack, 529 U.S. at 484 (quotations omitted).

       In his application for COA, Mr. Stanley argues, as he did at the district court, that

his lawyers were ineffective by failing to raise allegations of vindictive prosecution at

trial and on appeal. To establish ineffective assistance of counsel, a petitioner must show

(1) constitutionally deficient performance that (2) resulted in prejudice by demonstrating

“a reasonable probability that, but for counsel’s unprofessional errors, the result of the

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case would have been different.” Strickland, 466 U.S. at 687, 694. If the applicant

cannot show either “deficient performance” or “sufficient prejudice,” the ineffective

assistance claim “necessarily fails.” Hooks v. Workman, 606 F.3d 715, 724 (10th Cir.

2010).

         To show sufficient prejudice, the applicant must establish that “counsel’s errors

were so serious as to deprive him of a fair trial, a trial whose result is reliable.” Id.

(quotations omitted). “Establishing a reasonable probability of a different outcome

requires something less than a showing [that] counsel’s deficient conduct more likely

than not altered the outcome in the case. Instead, a reasonable probability is one

sufficient to undermine confidence in the outcome.” Id. (citation omitted) (quotations

omitted). “[M]ere speculation is not sufficient to satisfy this burden.” Byrd v. Workman,

645 F.3d 1159, 1168 (10th Cir. 2011).

         We have reviewed Mr.Stanley’s application for COA, the record on appeal, and

the relevant legal authority. We conclude, as did the district court, that Mr. Stanley failed

to establish prejudice because he provided insufficient evidence of either actual

vindictiveness or “a realistic likelihood of vindictiveness.” Sarracino, 340 F.3d at 1177.

         We conclude that reasonable jurists could not debate the correctness of the district

court’s decision on Mr. Stanley’s ineffective assistance of counsel claims. We therefore

deny COA on this issue.




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                                   III. CONCLUSION

      We reject Mr. Stanley’s application for a COA and dismiss this matter. We also

deny his request to proceed in forma pauperis.

                                         ENTERED FOR THE COURT


                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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