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

                                    TENTH CIRCUIT                             September 24, 2014

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

       Plaintiff - Appellee,

v.                                                             No. 14-6128
                                                     (D.C. Nos. 5:13-CV-01273-F and
GLEN TAYLOR HERGET,                                        5:11-CR-00081-F-1)
                                                               (W.D. Okla.)
       Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



       Glen Herget, a federal prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B)


       
         This order is not binding precedent, except under the doctrines of law of the case,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.
       1
         Because Mr. Herget 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.”).
(requiring a COA to appeal an order denying a § 2255 petition). Exercising jurisdiction

under 28 U.S.C. § 1291, we deny Mr. Herget’s request and dismiss this matter.

                                  I. BACKGROUND

       Mr. Herget pled guilty to one count of receipt of child pornography in violation of

18 U.S.C. § 2252(a)(2). Under a plea agreement, the Government agreed to drop nine

other charges in exchange for his guilty plea. Mr. Herget reserved the right to appeal any

sentence above the advisory guideline range.

       Mr. Herget’s prior child pornography conviction subjected him to a 15-year

mandatory minimum sentence, which changed his advisory guideline range from 168 to

210 months to 180 to 210 months. The sentencing court varied upward and sentenced

Mr. Herget to 240 months in prison. Mr. Herget appealed, and we affirmed the sentence

as procedurally and substantively reasonable. United States v. Herget, 499 F. App’x. 743

(10th Cir. 2012) (unpublished).

       Mr. Herget filed a § 2255 motion in the district court challenging his conviction

and sentence. He claimed (1) his trial counsel was ineffective, (2) the sentencing court

abused its discretion by imposing a 240-month sentence, and (3) the sentencing court

violated his due process rights by subjecting him to a 15-year mandatory minimum

sentence based on his prior child pornography conviction.

       The district court denied Mr. Herget’s § 2255 motion. First, the court declined to

consider his ineffective assistance of counsel arguments because Mr. Herget waived his




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right to appeal or collaterally attack his conviction and sentence. The court explained

that although such a waiver is not enforceable regarding a claim of ineffective assistance

in negotiating or entering into the plea or waiver, United States v. Cockerham, 237 F.3d

1179, 1187 (10th Cir. 2001), Mr. Herget did not assert such a claim until his reply brief in

the district court. The court added that if it reached those claims, Mr. Herget had failed to

carry his burden of demonstrating a reasonable probability he would not have pled guilty

but for counsel’s errors. Second, the district court said it was precluded from addressing

Mr. Herget’s challenge to the reasonableness of his sentence because this court had

disposed of it on direct appeal. See United States v. Prichard, 875 F.2d 789, 791 (10th

Cir. 1989). Finally, the district court determined it could not revisit the 15-year

mandatory minimum sentence because Mr. Herget had failed to challenge it at his change

of plea hearing, at his sentencing hearing, or on direct appeal. See United States v. Cox,

83 F.3d 336, 341 (10th Cir. 1996).

                                     II. DISCUSSION

                                   A. Legal Background

       To challenge the district court’s order denying his § 2255 petition, Mr. Herget

must receive a COA. See 28 U.S.C. § 2253(c)(1)(B); United States v. Gonzalez, 596 F.3d

1228, 1241 (10th Cir. 2010). To receive a COA, he 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). Because the district court rejected Mr. Herget’s claims on




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procedural grounds, he must demonstrate as to those claims “both that ‘jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.’” Clark v. Oklahoma, 468 F.3d 711, 713 (10th

Cir. 2006) (quoting Slack, 529 U.S. at 484).

       Mr. Herget’s claims each run afoul of one or more of the following procedural

rules. First, we consider arguments waived if they were not in the party’s opening brief

in the district court, and we generally do not address them. United States v. Moya-

Breton, 439 F. App’x 711, 715 (10th Cir. 2011) (unpublished) (observing a “district-court

traverse, . . . like a reply brief, is not a proper vehicle to raise a new issue”);2 see

Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174-75 (10th Cir. 2005) (“An issue not

included in either the docketing statement or the statement of issues in the party’s initial

brief is waived on appeal.” (internal quotations and citation omitted)). Second, we do not

consider arguments we have disposed of on direct appeal. Prichard, 875 F.2d at 791.

Finally, we do not consider arguments that could have been raised on direct appeal but

were not. Bousley v. United States, 523 U.S. 614, 622 (1998) (holding claims that “can

be fully and completely addressed on direct review based on the record” are generally

procedurally barred from collateral review).



       2
        Unpublished decisions are not precedential, but may be cited for their persuasive
value. See Fed. R. App. 32.1; 10th Cir. R. 32.1.


                                                -4-
                                        B. Analysis

       In his application for COA, Mr. Herget reasserts the same three claims he raised in

the district court. We conclude his claims are procedurally barred and deny his COA

requests.

       First, Mr. Herget did not allege a non-waivable ineffective assistance of counsel

claim until his district court reply brief. Under Anderson, we generally consider such a

claim waived, and we do not consider it here. See Anderson, 422 F.3d at 1174-75.3

       Second, we are procedurally barred from hearing Mr. Herget’s claim that the

upward variance was based on protected speech. As a preliminary matter, Mr. Herget did

not articulate his First Amendment claim until his reply brief in the district court, and so

we consider it waived. Anderson, 422 F.3d at 1174-75. Furthermore, our earlier

resolution of Mr. Herget’s direct appeal bars us from evaluating the First Amendment

claim now. To the extent Mr. Herget argued his claim on direct appeal, we have disposed

of the issue and our review is barred by Prichard. Prichard, 875 F.2d at 791. To the

       3
         On appeal, Mr. Herget argues the district court did not liberally construe his pro
se claims regarding ineffective assistance of counsel. In his § 2255 motion, Mr. Herget
claimed counsel “failed to inform [him] of all possible choices and outcomes” and “failed
to seek a favorable sentence.” Mot. To Vacate under § 2255, ROA, Vol. 1 at 12. He
contends the motion should be construed to mean he realized after sentencing he was
dissatisfied with the quality of his representation and the plea agreement. Aplt. Br. at 12.
        We disagree, but even with a liberal construction, Mr. Herget’s allegations do not
make out an ineffective assistance of counsel claim. Even on appeal, Mr. Herget fails to
allege sufficient facts. Aplt. Br. at 3-4. He has not shown his representation fell below
the objective standard and prejudiced his defense under Strickland v. Washington, 466
U.S. 668 (1984), particularly when the potential repercussions of the plea agreement were
explained to him in writing and at sentencing.


                                             -5-
extent Mr. Herget did not fully raise the claim on direct appeal, we conclude he should

have done so, and our review is precluded under Bousley. Bousley, 523 U.S. at 622. In

either event, we do not resolve the claim at this stage. See United States v. Warner, 23

F.3d 287, 289 (10th Cir.1994) (“[T]he issues Defendant raised in his § 2255 motion had

either been decided on direct appeal or should have been raised on direct appeal and were

therefore procedurally barred.”).

       Third, Mr. Herget could have raised his due process challenge to his sentence on

direct appeal. He did not, and Bousley precludes considering it at this stage of § 2255

habeas review. Bousley, 523 U.S. at 622; see Warner, 23 F.3d at 289.

       Finally, Mr. Herget waived his right to bring a collateral attack in his plea

agreement, which may not apply to his first issue but does foreclose his other two.4

                                    III. CONCLUSION

       For these reasons, reasonable jurists could not debate the district court’s denial of




       4
         Mr. Herget also argues the district court did not sufficiently analyze his claims,
noting its opinion closely tracks language in the Government’s brief. This argument does
not overcome the procedural grounds to deny habeas relief discussed above. Moreover,
the Government and the district court cited established legal principles that are routinely
raised in § 2255 appeals. The principles were accurately applied, and we cannot
conclude the district court inadequately considered Mr. Herget’s claims.


                                             -6-
Mr. Herget’s § 2255 motion as to all three issues. Accordingly, we reject Mr. Herget’s

application for COA and dismiss this matter.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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