                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 12, 2011
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 11-1355
                                             (D.C. No. 1:11-CV-01053-WDM,
 v.                                           D.C. No. 1:03-CR-00495-WDM)
                                                         (D. Colo.)
 FREDERICK D. DEBERRY,

              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Frederick Deberry, a federal prisoner proceeding pro se, 1 seeks a certificate

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

relief under 28 U.S.C. § 2255. Mr. Deberry has also filed a motion to proceed in



      *
              This Order is not binding precedent, except under the doctrines of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. Deberry 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).
forma pauperis on appeal. We deny Mr. Deberry’s application for a COA and

dismiss his appeal. We also deny his motion to proceed in forma pauperis.

                                 BACKGROUND

      The relevant facts are set forth in the district court’s order denying Mr.

Deberry’s § 2255 motion; in our decision in United States v. Deberry, 364 F.

App’x 404 (10th Cir. 2010), arising from Mr. Deberry’s direct appeal in this case;

and our decision in United States v. Deberry, 430 F.3d 1294 (10th Cir. 2005),

adjudicating the government’s direct appeal. In brief, while imprisoned at the

U.S. Penitentiary in Florence, Colorado, Mr. Deberry and two fellow inmates,

Rodgerick Lackey and Paul Talifero, collaborated in an assault on another inmate,

Wayne Wheelock. In the course of the attack, Mr. Deberry allegedly stabbed Mr.

Wheelock five times in the back with an ice-pick-style weapon (colloquially

known as a “shank”). Mr. Deberry and his erstwhile collaborators are African

American. The victim, Mr. Wheelock, is Native American. Three days after the

altercation, three Native American inmates attacked and allegedly stabbed an

African American inmate, Arnold Haskins, in retaliation for Mr. Deberry’s assault

on Mr. Wheelock.

      Following an investigation, Messrs. Deberry, Lackey, and Talifero were

charged in a four-count superseding indictment in October 2003. However, the

Native American inmates involved in the later attack were not immediately

charged. Mr. Deberry and his codefendants then brought a claim of selective


                                         2
prosecution. The district court ordered discovery, but the government refused to

comply. The court then dismissed the indictment against the three defendants,

allowing the government to appeal the discovery order. In the meantime, in July

2005, the Native American inmates involved in the later attack were indicted.

      In December 2005, this court reversed the district court’s dismissal of the

indictment against Messrs. Deberry, Lackey, and Talifero. Deberry, 430 F.3d at

1302. We held that the defendants had not carried their burden under United

States v. Armstrong, 517 U.S. 456 (1996), of showing both discriminatory effect

and discriminatory intent in order to warrant discovery on a selective-prosecution

claim. Deberry, 430 F.3d at 1300–01. In particular, we concluded that the

defendants and the Native American inmates were not similarly situated in one

significant respect: A video camera captured the defendants’ attack on Mr.

Wheelock, while the Native American inmates’ attack on Mr. Haskins occurred

inside a cell, out of camera range, thus necessitating the use of less reliable

evidence (eyewitness testimony) and more preparation for trial. Id. at 1301.

      After remand, Mr. Deberry entered into a plea bargain with the

government, agreeing to plead guilty to one count of possession of a dangerous

weapon in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), in exchange for dismissal

of all other charges against him. Although Mr. Deberry’s guilty plea pertained to

possession only, the plea agreement contained a description of the alleged assault,

and Mr. Deberry objected to some of its language. By handwritten note attached


                                          3
to the agreement and initialed by the parties, Mr. Deberry reserved the right to

contest language indicating that he did anything other than possess the prohibited

weapon. He also reserved the right to contest the extent of any injuries sustained

by the victim, Mr. Wheelock. At the change of plea hearing, the parties clarified

that Mr. Deberry was admitting to possession of the weapon but specifically

disavowing any use of the weapon in connection with Mr. Wheelock’s injuries.

      A pre-sentence report (“PSR”) was prepared that calculated Mr. Deberry’s

offense level at eleven with a criminal history category of IV, resulting in an

advisory Guidelines range of eighteen to twenty-four months in prison. However,

the PSR recommended an upward departure to a sentence of sixty months (the

statutory maximum for possession) based on the alleged assault and the extent of

the resulting injuries. Mr. Deberry objected to the recommended sentence and

disputed the facts contained in the PSR. In response, the court scheduled an

evidentiary hearing.

      During the hearing, the court heard testimony from four witnesses and

admitted several exhibits, including the video recording of the altercation and the

shank allegedly used against Mr. Wheelock. After considering the evidence and

the parties’ arguments, the court found by a preponderance of the evidence that

Mr. Wheelock suffered a life-threatening injury and that Mr. Deberry

intentionally inflicted that injury. Based on these findings, the court determined

that an upward departure was warranted and, after considering the Guidelines and


                                          4
the other 18 U.S.C. § 3553(a) factors, imposed a sentence of fifty-four months.

      On direct appeal, Mr. Deberry argued that the upward departure based on

the district court’s findings of fact denied him his Sixth Amendment right to trial

by jury. We rejected this argument based on the well-established principle that

(as long as the Guidelines are applied in advisory fashion) a defendant has no

constitutional right to a jury determination of the facts supporting a sentencing

enhancement if that enhancement falls within the statutory range for the offense.

See Deberry, 364 F. App’x at 406. We thus affirmed Mr. Deberry’s conviction

and sentence, and the Supreme Court denied certiorari on June 1, 2010, see 130 S.

Ct. 3371 (2010).

      On April 21, 2011, Mr. Deberry filed a motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255, asserting four claims: (1)

vindictive and/or discriminatory prosecution, (2) judicial bias, (3) abuse of

discretion by the sentencing court, and (4) ineffective assistance of counsel. On

June 13, 2011, Mr. Deberry filed a motion to amend and add a fifth claim. The

district court granted Mr. Deberry’s motion to amend. In his fifth claim, Mr.

Deberry asserted that the length of his sentence was unreasonable. The district

court subsequently denied the § 2255 motion, as amended, and entered judgment

on July 22, 2011. Mr. Deberry filed a notice of appeal on July 27, 2011. The

district court then denied both his request for a COA and leave to proceed in

forma pauperis on appeal. Mr. Deberry now seeks a COA from this court,


                                         5
reasserting his five claims for relief. 2 He also seeks our leave to proceed in forma

pauperis.

                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to our review of the merits of a

habeas appeal. See 28 U.S.C. § 2253(c)(1)(B); accord United States v. Tony, 637

F.3d 1153, 1157 (10th Cir. 2011). We will issue a COA “only if the [movant] has

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

§ 2253(c)(2). To satisfy this standard, the movant must demonstrate that

“reasonable jurists could debate whether . . . the [§ 2255 motion] should have

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

deserve encouragement to proceed further.” Tony, 637 F.3d at 1157 (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted).

When, as here, the district court denies a motion on the merits, the movant carries

his burden by showing that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” United States v.

Bedford, 628 F.3d 1232, 1234 (10th Cir. 2010) (quoting Slack, 529 U.S. at 484).




      2
              In his application for a COA, Mr. Deberry asserts what he styles a
“[s]ixth [i]ssue,” namely, that “[t]he district court committed clear error and
abused its discretion when denying Appellant’s section 2255 motion.” Aplt.
Combined Opening Br. & Appl. for COA at 16. Mr. Deberry’s arguments under
this heading reprise his arguments under the other five claims. We therefore
construe this sixth claim as subsumed within the other five.

                                          6
                                   DISCUSSION

      Four of the five claims that Mr. Deberry puts forth in his COA application

arise out of the fifty-four-month sentence that was imposed by the district court

and affirmed on direct appeal in Deberry, 364 F. App’x 404. In claim one (claim

two in his original § 2255 motion before the district court), Mr. Deberry alleges

judicial bias based on the stated findings of the district court at the sentencing

hearing. In claim three (claim one in his original § 2255 motion), he alleges that

he has been subject to vindictive prosecution and racial discrimination because

the Native American inmates involved in the retaliatory attack received more

lenient sentences than he and because the government sought the maximum

sentence against him out of retaliation for his previous assertions of

discriminatory prosecution. Claims two and four (originally claims three and

five) are, in substance, challenges to the reasonableness of his sentence. Mr.

Deberry asserts that the district court abused its discretion during the sentencing

phase by failing to consider U.S. Sentencing Guidelines Manual (“U.S.S.G.”)

§ 5K2.10, applicable when a victim’s conduct is wrongful and provocative; and

that the length of his sentence is unreasonable in light of both Mr. Wheelock’s

provocations and the disparity in sentencing vis-à-vis his codefendants and the

Native American inmates. In his fifth (originally fourth) claim, Mr. Deberry

argues that his counsel was constitutionally deficient for failing to “raise as

grounds the issues and claims now raised herein for appeal review.” Aplt.


                                          7
Combined Opening Br. & Appl. for COA at 15.

      None of the first four claims was raised by Mr. Deberry on direct appeal,

and it is well-established that § 2255 is ordinarily “not available to test the

legality of matters which should have been raised on appeal.” United States v.

Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (quoting United States v. Khan,

835 F.2d 749, 753 (10th Cir. 1987)) (internal quotation marks omitted). Having

procedurally defaulted these claims, Mr. Deberry may resurrect them only by

showing “either cause and actual prejudice, or that he is actually innocent.” Id.

(quoting Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal quotation

marks omitted).

      A claim of ineffective assistance of counsel satisfies the cause requirement,

see id.; accord United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995), and Mr.

Deberry has asserted as his fifth claim that he was denied the effective assistance

of counsel through his counsel’s failure to raise the first four claims on direct

appeal. See Aplt. Combined Opening Br. & Appl. for COA at 15 (asserting

ineffective assistance for counsel’s failure to raise “the issues and claims now

raised herein”). 3 Accordingly, at the outset, we will assess the effectiveness of

      3
             The government argued to the district court that Mr. Deberry’s fourth
claim—unreasonable length of sentence, which was originally his fifth claim,
added after his motion to amend—was not encompassed within his claim of
ineffective assistance of counsel. R. at 88 (United States’ Answer Def.’s Mot.
Under 28 U.S.C. § 2255, filed June 21, 2011). The district court agreed but
examined the merits anyway. Id. at 103 (Order Mot. Vacate, Set Aside, or
                                                                     (continued...)

                                           8
      3
        (...continued)
Correct Sentence Pursuant to 28 U.S.C. § 2255, filed July 21, 2011). In his
original § 2255 motion asserting four claims, Mr. Deberry claimed ineffective
assistance by virtue of his counsel’s failure to raise the other three claims, which
he enumerated specifically: “Prosecutorial Misconduct,” “Judicial Bias,” and
“Plain Error” (i.e., abuse of discretion by the sentencing court in failing to
consider U.S.S.G. § 5K2.10). See R. at 32, 39–40 (Mot. Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255, filed Apr. 21, 2011). When he
amended his motion, Mr. Deberry appears to have photocopied the original
motion and added to the last page (spilling over onto an additional page) a “claim
five” for unreasonable length of sentence. See id. at 65–66 (Amended Mot.
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed June
13, 2011). Because Mr. Deberry photocopied the original motion, he did not alter
his ineffective-assistance claim to specifically reference the newly added fifth
claim. Nonetheless, there are two reasons to construe the ineffective-assistance
claim as encompassing the new unreasonable-length-of-sentence claim.

       First, Mr. Deberry appears to have intended the ineffective-assistance claim
to encompass all other claims in his § 2255 motion. He states that “had his
appeal counse[l] raised as grounds on appeal the claims now raised herein, as the
defendant strenuously requested he do, then surely he would have received a
favorable decision on appeal.” Id. at 64–65. Against the background of liberally
construing a pro se litigant’s filings, see Van Deelen, 497 F.3d at 1153 n.1, the
best interpretation of this language, in light of the amendment to the § 2255
motion, is that Mr. Deberry later recalled an additional claim—the subsequently
appended fifth claim—which he also had asked his counsel to raise.

       Second, as discussed infra, the unreasonable-length-of-sentence claim is
closely related to Mr. Deberry’s second (originally third) claim contending that
the sentencing court abused its discretion by failing to consider U.S.S.G.
§ 5K2.10. The gist of both of these claims is that Mr. Deberry’s fifty-four-month
sentence is unreasonable. The unreasonable-length claim sounds in substantive
unreasonableness, and the failure-to-consider claim sounds in procedural
unreasonableness. See United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th
Cir. 2008) (explaining substantive and procedural unreasonableness in reviewing
a district court’s sentencing decision).

     Accordingly, we construe Mr. Deberry’s ineffective-assistance claim as
encompassing all claims, including the unreasonable-length-of-sentence claim, in
                                                                    (continued...)

                                         9
Mr. Deberry’s counsel, using the familiar standard of Strickland v. Washington,

466 U.S. 668 (1984), in the context of determining whether he has shown cause

for procedurally defaulting the first four claims. Mr. Deberry must show that his

“counsel’s performance ‘fell below an objective standard of reasonableness’ and

that ‘the deficient performance prejudiced [his] defense.’” Byrd v. Workman, 645

F.3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting Strickland, 466

U.S. at 687–88).

      “Although Strickland set forth standards for determining the effectiveness

of trial counsel, we have applied those same standards in assessing the

effectiveness of appellate counsel.” Cook, 45 F.3d at 392. When the basis of an

ineffective-assistance claim is the failure by appellate counsel to raise an issue on

appeal, “we must look to the merits of the omitted issue.” United States v.

Orange, 447 F.3d 792, 797 (10th Cir. 2006). “If the omitted issue is without

merit, counsel’s failure to raise it ‘does not constitute constitutionally ineffective

assistance of counsel.’” Cook, 45 F.3d at 393 (quoting United States v. Dixon, 1

F.3d 1080, 1084 n.5 (10th Cir. 1993)) (internal quotation marks omitted).

Further, if counsel was not ineffective in failing to raise a claim on appeal, a

defendant cannot satisfy the cause requirement to excuse his procedural default of

the claim. See Challoner, 583 F.3d at 750 (holding that the defendant “ha[d] not



      3
      (...continued)
his COA application.

                                          10
demonstrated that his attorney was ineffective in failing to raise [an] issue on

direct appeal” and, thus, that the defendant “ha[d] failed to show cause excusing

the procedural default”).

      The district court analyzed and rejected each of Mr. Deberry’s first four

claims on the merits. It separately analyzed and rejected Mr. Deberry’s final

claim for ineffective assistance of counsel, ultimately dismissing his § 2255

motion. We, too, will examine the merits of Mr. Deberry’s first four claims, but

we do so to determine only whether his appellate counsel was ineffective for

failing to raise the issues on direct appeal. If we find that the omitted issues are

without merit, counsel’s failure to raise them does not constitute constitutionally

ineffective assistance of counsel. See Cook, 45 F.3d at 392. For the reasons

discussed below, we agree with the district court that the first four claims lack

merit, and, as a consequence, Mr. Deberry cannot succeed on his fifth claim that

appellate counsel was ineffective. Further, because we find that counsel was not

ineffective, Mr. Deberry has failed to show cause for procedurally defaulting the

first four claims. See Challoner, 583 F.3d at 750. In sum, we conclude that Mr.

Deberry’s first four claims are procedurally barred and that his fifth, ineffective-

assistance claim also must be rejected. Accordingly, we find that reasonable

jurists could not debate the district court’s conclusion that Mr. Deberry is not

entitled to § 2255 relief.




                                          11
I. Claim One: Judicial Bias

      Mr. Deberry asserts a claim of judicial bias arising out of the district

court’s findings of fact at the sentencing hearing. “To demonstrate a violation of

due process because of judicial bias, a claimant must show either actual bias or an

appearance of bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010)

(quoting United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005)) (internal

quotation marks omitted). This is a high hurdle to overcome when the claim of

bias is based on comments the judge made in court. The “judge’s actions or

comments [must] reveal such a high degree of favoritism or antagonism as to

make fair judgment impossible.” United States v. Gambino-Zavala, 539 F.3d

1221, 1228 (10th Cir. 2008) (alteration in original) (quoting Nickl, 427 F.3d at

1298) (internal quotation marks omitted). Moreover, “[a]dverse rulings alone do

not demonstrate judicial bias.” Bixler, 596 F.3d at 762. “The bias charged must

be of a personal nature and must be such as would likely result in a decision on

some basis other than what the judge learned from his participation in the case.”

United States v. Irwin, 561 F.2d 198, 200 (10th Cir. 1977).

      At the sentencing hearing, the district court, having reviewed a

videorecording of Mr. Deberry’s attack on Mr. Wheelock, stated that Mr. Deberry

“returned [downstairs] and felt that he . . . was subject to disrespect by Wheelock

and then went again back upstairs and returned with the weapon and the . . . two

other codefendants in this case, Talifero and Lackey.” R. at 18 (Rep.’s Tr.


                                         12
Excerpt Sentencing Hr’g, filed Dec. 9, 2008). Mr. Deberry avers that there is no

evidence to support the finding that he retrieved the shank or sought the help of

his codefendants in response to an initial provocation by Mr. Wheelock, that the

district court ignored eyewitness testimony tending to establish that Mr. Deberry

acted in self-defense, and that the court’s comments “erroneously insinuat[ed]

that the Appellant premeditated the attack on Wheelock.” Aplt. Combined

Opening Br. & Appl. for COA at 5; accord R. at 56, 61–62. Mr. Deberry further

contends that these findings were “rendered . . . obviously to aid the government

in its argument that the court impose a much harsher sentence,” Aplt. Combined

Opening Br. & Appl. for COA at 5, and that they “reveal[ed] an extremely high

degree of favoritism on behalf of the government,” id. at 6.

      Mr. Deberry’s claim of judicial bias rests on nothing more than the district

court’s adverse ruling and allegedly erroneous commentary on the matter before

it. Standing alone, this does not suffice. “[W]hen a judge’s words or actions are

motivated by events originating within the context of judicial proceedings, they

are insulated from charges of bias.” Nickl, 427 F.3d at 1298. Also, “[a]dverse

rulings alone are insufficient grounds for disqualification, as is evidence that the

judge criticized or was angry with a party.” In re Am. Ready Mix, Inc., 14 F.3d

1497, 1501 (10th Cir. 1994) (citations omitted); see also Liteky v. United States,

510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid

basis for . . . bias . . . .”); United States v. Bray, 546 F.2d 851, 857 (10th Cir.


                                            13
1976) (“Nor are adverse rulings by a judge grounds for disqualification.”).

      Mr. Deberry has not shown “such a high degree of favoritism or

antagonism as to make fair judgment impossible.” Gambino-Zavala, 539 F.3d at

1228 (quoting Nickl, 427 F.3d at 1298) (internal quotation marks omitted).

Accordingly, his judicial-bias claim is without merit. Because the claim is

without merit, Mr. Deberry’s counsel was not ineffective for failing to raise it on

direct appeal, see Cook, 45 F.3d at 392–93, and as a result, Mr. Deberry has not

shown cause for procedurally defaulting the claim, see Challoner, 583 F.3d at

750. Therefore, no reasonable jurist could debate the district court’s conclusion

that Mr. Deberry is not entitled to § 2255 relief on this ground.

II. Claim Three: Vindictive Prosecution

      Mr. Deberry argues that he has been subject to vindictive prosecution and

racial discrimination because the Native Americans involved in the retaliatory

attack received more lenient sentences than he, even though the “circumstances

and events” of that retaliatory attack “were extremely more severe, and far

harsher than those involved in the instant case.” Aplt. Combined Opening Br. &

Appl. for COA at 10. He asserts, more specifically, that “[while] the three

Native-American defendants plotted[,] planned[,] and successfully committed a

violent assault against an innocent inmate . . . [,] the Appellant and two co-

defendants in fact acted in response to the aggressive provocations of Wheelock.”

Id. Mr. Deberry also alleges that the government sought the maximum sentence


                                         14
against him out of retaliation for his previous assertions of discriminatory

prosecution. 4

      The government argued before the district court that Mr. Deberry is

precluded from asserting his selective prosecution claim in a § 2255 motion

because the claim was previously resolved on direct criminal appeal. See, e.g.,

United States v. Cox, 83 F.3d 336, 342 (10th Cir. 1996) (holding that defendant

could not raise in a § 2255 motion an issue previously decided on direct criminal

appeal). The district court found that “the issue raised here is not exactly the

same in that now Deberry challenges his sentence, not the filing of the indictment,

based on his contention of discriminatory or unlawful motive.” R. at 98.

Nevertheless, the court rejected the claim. We agree with the district court that

Mr. Deberry’s argument, which focuses on his sentence, is a distinct one, but also

      4
              This argument, though addressed by the district court, is not artfully
made in Mr. Deberry’s combined opening brief and application for COA. He
asserts that “an actual case of vindictive prosecution is prev[a]lent in the instant
case because, though the government prosecuted the three [Native American]
defendants involved in that other assault, it did so merely to s[u]rvive the
selective prosecution argument. Moreover, in the instant case, the government
argued vehemently that the district court impose the maximum sentence allowable
to the Appellant, but [recommended more lenient sentences for the Native
American defendants].” Aplt. Combined Opening Br. & Appl. for COA at 9–10.
Because the district court addressed the retaliation argument and because we
construe Mr. Deberry’s COA application liberally, Van Deelen, 497 F.3d at 1153
n.1, we will not deem the argument waived. Cf. Kokins v. Teleflex, Inc., 621 F.3d
1290, 1301 n.6 (10th Cir. 2010) (“[W]e routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.” (alteration in original) (quoting Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007))).


                                         15
conclude that it is meritless.

      First, while Mr. Deberry contests the district court’s findings that he

retrieved a shank and sought his codefendants’ help after feeling “disrespect[ed]”

by Mr. Wheelock, see Aplt. Combined Opening Br. & Appl. for COA at 5, he

does not dispute what the video evidence shows: that there was an initial

confrontation between him and Mr. Wheelock, that he left the scene and returned

a short time later with his codefendants, and that he and his codefendants

subsequently closed in on Mr. Wheelock and attacked him with a shank, causing

Mr. Wheelock to suffer severe injuries. See R. at 100. The circumstances of this

altercation, then, were not as different from the later retaliatory attack by the

Native American inmates as Mr. Deberry suggests. Second, as the district court

noted, “any differences regarding the sentences imposed would not demonstrate

prosecutorial misconduct because the sentences are imposed by the sentencing

judge,” id. at 98, and Mr. Deberry “has not shown that the sentencing factors that

informed his sentence were present with the other inmates,” id. at 98 n.2. Finally,

Mr. Deberry’s argument that the government sought the maximum sentence in his

case out of retaliation is merely speculative. Equally, if not more likely, the

maximum sentence was sought “because of the seriousness of the offense

conduct, including the intentional use of a dangerous weapon and the victim’s

life-threatening injury.” Id. at 98.

      We therefore conclude that there is no merit to Mr. Deberry’s vindictive-


                                          16
prosecution claim. Because the claim is without merit, Mr. Deberry’s counsel

was not ineffective for failing to raise it on direct appeal, and as a result, Mr.

Deberry has not shown cause for procedurally defaulting the claim. See Cook, 45

F.3d at 392–93; Challoner, 583 F.3d at 750. Therefore, no reasonable jurist could

debate the district court’s conclusion that Mr. Deberry is not entitled to § 2255

relief on this ground.

III. Claims Two and Four: Unreasonable Sentence

      In his second and fourth claims, Mr. Deberry challenges the reasonableness

of his sentence. He asserts that the district court abused its discretion during the

sentencing phase by failing to consider U.S.S.G. § 5K2.10, which is applicable

when a victim’s conduct is wrongful and provocative; and that the length of his

sentence is unreasonable in light of both Mr. Wheelock’s alleged provocations

and the disparity in sentencing vis-à-vis his codefendants and the Native

American inmates.

      In reviewing a defendant’s sentence for reasonableness, we defer to the

district court under the “familiar abuse-of-discretion standard of review.” United

States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010) (quoting Gall v. United

States, 552 U.S. 38, 46 (2007)) (internal quotation marks omitted).

“Reasonableness review is a two-step process comprising a procedural and a

substantive component.” United States v. Begaye, 635 F.3d 456, 461 (10th Cir.

2011) (quoting United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.


                                           17
2008)) (internal quotation marks omitted); see also United States v. Kristl, 437

F.3d 1050, 1055 (10th Cir. 2006) (adopting the “two-step approach to the

reasonableness standard of review”).

             A sentence is procedurally reasonable when the district court
             computes the applicable Guidelines range, properly considers the
             [18 U.S.C.] § 3553(a) factors, and affords the defendant his
             rights under the Federal Rules of Criminal Procedure. A
             sentence is substantively reasonable when the length of the
             sentence reflects the gravity of the crime and the § 3553(a)
             factors as applied to the case.

United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir. 2008)

(alteration omitted) (citations omitted) (quoting United States v. Geiner, 498 F.3d

1104, 1107 (10th Cir. 2007), and United States v. Atencio, 476 F.3d 1099, 1102

(10th Cir. 2007), overruled in part on other grounds by Irizarry v. United States,

553 U.S. 708, 713 n.1 (2008)) (internal quotation marks omitted).

      We construe Mr. Deberry’s second claim as pertaining to the procedural

reasonableness of his sentence. See United States v. Fonseca, 473 F.3d 1109,

1112 (10th Cir. 2007) (“A direct challenge to the district court’s denial of a

downward departure is . . . treated as a challenge to the preliminary application of

the Guidelines under the first step of the Kristl analysis [i.e., procedural

reasonableness].”). Like the district court, we construe Mr. Deberry’s fourth

claim as pertaining to substantive reasonableness.




                                          18
A. Claim Two: Procedural Reasonableness

      Mr. Deberry claims that his sentence is procedurally unreasonable because

the district court failed to apply a departure based on U.S.S.G. § 5K2.10, under

which a court “may reduce [a] sentence below the guideline range” when “the

victim’s wrongful conduct contributed significantly to provoking the offense

behavior.” Mr. Deberry claims that Mr. Wheelock was the “main instigator;

aggressor; and one who ultimately provoked the offense behavior.” Aplt.

Combined Opening Br. & Appl. for COA at 7.

      Had Mr. Wheelock’s counsel sought to raise this claim on direct appeal, we

would have lacked jurisdiction to consider it. As we have explained before, “this

court has no jurisdiction to review a district court’s discretionary decision to deny

a motion for downward departure on the ground that a defendant’s circumstances

do not warrant the departure.” Fonseca, 473 F.3d at 1112 (alterations omitted)

(quoting United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005))

(internal quotation marks omitted). Rather, we may review a denial of a

downward departure only if the sentencing court interpreted the Guidelines “as

depriving it of the legal authority to grant the departure.” Id. The district court

here did not interpret the Guidelines in this way. To the contrary, it

considered—and ultimately rejected—Mr. Deberry’s claims concerning self-

defense and provocations by the victim, Mr. Wheelock.

      Mr. Deberry’s procedural-reasonableness claim lacks merit because, had it


                                         19
been raised on direct appeal, this court would not have had jurisdiction to

consider it. Appellate counsel does not render deficient performance by failing to

raise on appeal a claim over which the court lacks jurisdiction. Mr. Deberry has

thus failed to show cause for procedurally defaulting this claim, see Challoner,

583 F.3d at 750, and no reasonable jurist could debate the district court’s

conclusion that Mr. Deberry is not entitled to § 2255 relief on this ground.

B. Claim Four: Substantive Reasonableness

      The recommended Guidelines range for Mr. Deberry’s offense—possession

of a weapon while in prison under 18 U.S.C. §§ 1791(a)(2), (b)(3)—was eighteen

to twenty-four months. However, the PSR recommended an upward departure

pursuant to U.S.S.G. § 5K2.2 based on evidence that Mr. Wheelock suffered a

life-threatening injury and that Mr. Deberry intentionally inflicted that injury. At

sentencing, the district court agreed that an upward departure was appropriate,

stating:

             [T]he action of the defendant is much greater than simply
             possession. To think that a person who was found with a shank
             in his possession would be subject to, under the Guideline
             reference, up to two years in prison, someone who actually uses
             it and in an aggressive and deadly manner, certainly calls for a
             much harsher sentence.

R. at 23–24. The court settled on an offense level of twenty based on an “analogy

to assault [resulting] in serious bodily injury.” Id. at 20. Combined with Mr.

Deberry’s criminal history category of IV, the recommended Guidelines sentence



                                         20
would be fifty-one to sixty-three months. The district court, considering all of the

§ 3553(a) factors, concluded that a sentence of fifty-four months was “sufficient

but not greater than necessary” for the offense. R. at 24.

      Mr. Deberry challenges the substantive reasonableness of his sentence on

essentially two grounds: Mr. Wheelock’s “wrongful provocations” and the

disparity between Mr. Deberry’s sentence on the one hand and the sentences of

his codefendants and the Native American inmates on the other. 5 Aplt. Combined

Opening Br. & Appl. for COA at 12–13.

      When we review a defendant’s sentence for substantive reasonableness, we

employ an abuse-of-discretion standard. Martinez, 610 F.3d at 1227. We must

determine “whether the length of the sentence is reasonable given all the

circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”

Id. (quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009))



      5
              The district court addressed the substantive-reasonableness claim
based on the sentencing disparity with respect to Mr. Deberry’s codefendants only
and did not consider the disparity vis-à-vis the Native American inmates. See R.
at 103. However, Mr. Deberry’s § 2255 motion alleged disparity based on both
the sentences of the codefendants and the sentences of the Native American
inmates. See id. at 65–66 (alleging a “grave disparity in the sentence [Mr.
Deberry] received, as [o]pposed to the sentences that were imposed upon the
other two defendants (Roderick Lackey and Paul Talliafero [sic]), . . . as well as a
grave disparity in the sentence [Mr. Deberry] received, as [o]pposed to the
sentences that were imposed upon the three defendants named in that other
assault”). It appears, then, that the district court simply overlooked the claim of
disparity vis-à-vis the Native American inmates. Because Mr. Deberry made this
claim in both his § 2255 motion and his application for a COA, it is properly
before us.

                                         21
(internal quotation marks omitted). In so doing, we give “substantial deference”

to the district court, id. (quoting United States v. Smart, 518 F.3d 800, 806 (10th

Cir. 2008)) (internal quotation marks omitted), recognizing that substantive

reasonableness “contemplates a range, not a point,” id. (quoting United States v.

Omole, 523 F.3d 691, 698 (7th Cir. 2008)) (internal quotation marks omitted).

Reversal is warranted “only when the district court ‘renders a judgment that is

arbitrary, capricious, whimsical or manifestly unreasonable.’” Id. (quoting

Friedman, 554 F.3d at 1307).

      “We, like the district court, are guided by the § 3553(a) factors when

determining reasonableness.” Martinez-Barragan, 545 F.3d at 905. These factors

include “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); the need for the

sentence “to reflect the seriousness of the offense” and “to protect the public from

further crimes of the defendant,” id. § 3553(a)(2); and “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct,” id. § 3553(a)(6).

      Mr. Deberry’s claim of substantive unreasonableness based on the alleged

provocations by Mr. Wheelock must fail. While Mr. Wheelock may have thrown

the first punch, the district court found that this act was itself precipitated by Mr.

Wheelock’s being surrounded by Mr. Deberry and the codefendants. Moreover,

the court found that Mr. Deberry’s fivefold stabbing of Mr. Wheelock was


                                           22
disproportionate to any threat posed by Mr. Wheelock, particularly because Mr.

Deberry was aided by two confederates. Mr. Deberry does not dispute these

factual findings, nor does he dispute the severity of Mr. Wheelock’s injuries or

the intentional nature of his conduct. In light of the “nature and circumstances”

and “seriousness” of the offense, among other factors, 18 U.S.C. §§ 3553(a)(1),

(2), the district court did not abuse its discretion in imposing a fifty-four-month

sentence on Mr. Deberry.

      Likewise, Mr. Deberry cannot prevail based upon alleged sentencing

disparities. His claim suffers in two respects, one general and one specific. In

general, “§ 3553(a)(6) does not require the sentencing court to compare the

sentences of codefendants; rather, it looks to uniformity on a national scale.”

United States v. Ivory, 532 F.3d 1095, 1107 (10th Cir. 2008). Mr. Deberry has

not suggested that his sentence is disparate when compared to similarly situated

defendants nationwide. As to the specific point, the more lenient sentences

imposed on the codefendants, Messrs. Talifero and Lackey, are explicable

because it was Mr. Deberry, not the codefendants, who possessed the shank and

stabbed Mr. Wheelock. And with respect to the Native American inmates, Mr.

Deberry supplies us only with the lengths of their sentences; 6 he does not explain

      6
              Mr. Deberry informs us only that one inmate had the charges against
him dismissed, one was allowed to enter a plea to “the lesser included offense”
and received a sentence of twenty-four months, and the third entered a plea to
“the lesser included [offense]” and received a sentence of twelve months. Aplt.
                                                                     (continued...)

                                         23
why he and the Native American inmates are similarly situated (that is, he does

not allege that the Native American inmates had “similar records” or were guilty

of “similar conduct,” 18 U.S.C. § 3553(a)(6)). A mere difference in sentences

cannot establish that the district court abused its discretion in imposing the

sentence that it did. Cf. United States v. Caldwell, 219 F.3d 1186, 1195 (10th Cir.

2000) (“[A] mere difference between co-defendants’ applicable guideline ranges

will not justify a departure.”).

      Because Mr. Deberry’s claim that his sentence is substantively

unreasonable is without merit, his counsel was not ineffective for failing to raise

this claim on direct appeal. Cook, 45 F.3d at 392–93. As a result, Mr. Deberry

has not shown cause for procedurally defaulting this claim. See Challoner, 583

F.3d at 750. Therefore, no reasonable jurist could debate the district court’s

conclusion that Mr. Deberry is not entitled to § 2255 relief on this ground.

                                   CONCLUSION

      Because none of his first four claims has merit, Mr. Deberry cannot show

that his counsel was constitutionally ineffective for failing to raise these claims

on direct appeal. See Cook, 45 F.3d at 392–93. Accordingly, Mr. Deberry has

not shown cause adequate to resurrect these procedurally defaulted claims. See

Challoner, 583 F.3d at 750. For the same reason, the fifth claim in Mr. Deberry’s



      6
     (...continued)
Combined Opening Br. & Appl. for COA at 13.

                                          24
application for a COA—constitutionally deficient counsel—must be rejected. We

conclude, therefore, that reasonable jurists could not debate the district court’s

conclusion that Mr. Deberry is not entitled to § 2255 relief.

      We DENY Mr. Deberry’s application for a COA and DISMISS his appeal.

We also DENY Mr. Deberry’s motion to proceed in forma pauperis because he

has not demonstrated “the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” Watkins v. Leyba, 543

F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997)) (internal quotation marks omitted).



                                        ENTERED FOR THE COURT



                                        Jerome A. Holmes
                                        Circuit Judge




                                          25
