                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         January 31, 2006
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                              Clerk of Court

    UNITED STATES OF AMERICA,

          Respondent-Appellee,
    v.                                                    No. 05-4209
    JAMES DOUGLAS DAVIS,                          (D.C. No. 04-CV-00238-TC)
                                                       (District of Utah)
          Petitioner-Appellant.




                                       ORDER


Before BRISCOE, LUCERO,           and MURPHY , Circuit Judges.


         Defendant James Douglas Davis seeks a certificate of appealability (COA)

to appeal the district court’s denial of relief pursuant to 28 U.S.C. § 2255.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we deny Davis’s request for

a COA and dismiss this matter. 1

                                           I.

         On or around December 31, 2002, Davis conversed with an FBI agent on an

internet chat room, believing the FBI agent to be a thirteen year old female.

During the internet chat, explicit sexual conversations ensued, and Davis


1
         The government did not file a response to Davis’s appellate brief.
eventually agreed to meet the undercover agent for sexual activity. When Davis

arrived at the designated location, he was arrested.

      A jury found Davis guilty of attempting to coerce and entice a minor to

engage in sexual activity in violation of 18 U.S.C. § 2422(b). Davis failed to

perfect a direct appeal. Davis filed a collateral attack under 28 U.S.C. § 2255,

contending that he received ineffective assistance of counsel because his trial

counsel (1) failed to raise the claim that § 2422(b) required conduct with an

actual minor; (2) failed to file a direct appeal. After conducting an evidentiary

hearing, the district court denied Davis’s § 2255 petition, as well as his later

motion for a COA.

                                          II.

      On appeal, Davis argues that an individual may not be prosecuted under 18

U.S.C. § 2422(b) for inducing a person under eighteen years of age to engage in

an illegal sexual act when an undercover officer poses as a minor. He again

maintains that his trial counsel was ineffective for failing to raise this issue.

Additionally, Davis submits that his trial counsel was ineffective for not acting on

his request to file a direct appeal.

      Unless a petitioner first obtains a COA, no appeal may be taken from a

final order disposing of a § 2255 petition. 28 U.S.C. § 2253(c)(1)(B). A COA

may issue “only if the applicant has made a substantial showing of the denial of a


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constitutional right.” Id. § 2253 (c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). This determination “requires an overview

of the claims in the habeas petition and a general assessment of their merits.” Id.

at 336. Douglas is not required to prove the merits of his case, but he must

nonetheless demonstrate “something more than the absence of frivolity” or the

mere existence of good faith on his part. Id. at 338 (quotations omitted).

A. Statutory and Constitutional Challenge to § 2422(b)

      We conclude that Davis’s trial counsel was not ineffective for failing to

assert that § 2422(b) requires the involvement of an actual minor. To prove a

violation of § 2422(b), the government must show: “(1) use of a facility of

interstate commerce; (2) to knowingly persuade, induce, entice, or coerce; (3) any

individual who is younger than 18; (4) to engage in any sexual activity for which

any person can be charged with a criminal offense, or attempting to do so.”

United States v. Thomas, 410 F.3d 1235, 1245 (10th Cir. 2005) (citation

omitted). 2 Because a law enforcement officer posed as a minor, the government


2
      Title 18 U.S.C. § 2422(b) provides:

                                                                        (continued...)

                                         -3-
properly charged Davis with attempt. See id. (“Thomas was charged with attempt

in this case because he could not have actually enticed a minor because his online

chats were with an undercover police officer.”); see also United States v. Munro,

394 F.3d 865, 869 (10th Cir. 2005) (stating that in order to establish an attempt

under § 2422(b), the government must show that the defendant “took a

‘substantial step’ towards the commission of the ultimate crime, and that such

step was more than mere preparation”) (citation omitted). Further, as we recently

held, factual impossibility is not a defense to attempting to entice a minor under §

2422(b). United States v. Sims, 428 F.3d 945, 960 (10th Cir. 2005) (holding that

“it is not a defense to an offense involving enticement and exploitation of minors

that the defendant falsely believed a minor to be involved”) (citing United States

v. Meek, 366 F.3d 705, 717 (9th Cir. 2004); United States v. Root, 296 F.3d 1222,

1227 (11th Cir. 2002); United States v. Farner, 251 F.3d 510, 512-13 (5th Cir.

2001)).

         In addition to Davis’s statutory challenge, he insists that § 2422(b) is


2
    (...continued)
          Whoever, using the mail or any facility or means of interstate or
          foreign commerce . . . knowingly persuades, induces, entices, or
          coerces any individual who has not attained the age of 18 years, to
          engage in prostitution or any sexual activity for which any person can
          be charged with a criminal offense, or attempts to do so, shall be
          fined under this title and imprisoned not less than 5 years and not
          more than 30 years.


                                            -4-
unconstitutional in light of the Supreme Court’s decision in Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002). In Ashcroft, the Supreme Court held that

portions of the Child Pornography Prevention Act of 1996 were overbroad and

unconstitutional because the statute prohibited virtual child pornography, i.e.,

images created without the use of real children. Id. at 255. We believe that

Davis’s reliance on Ashcroft, which involved a substantially different statute, is

misplaced. Moreover, we reject Davis’s argument that § 2422(b) is

unconstitutionally overbroad because it encompasses prosecutions for adults

posing as minors. See Meek, 366 F.3d at 720-22 (disapproving of similar First

Amendment challenge to § 2422(b)); see also Thomas, 410 F.3d at 1243-44

(upholding constitutionality of § 2422(b) in the face of First Amendment

vagueness and overbreadth challenge).

      We conclude that because “an actual minor victim is not required for an

attempt conviction under 18 U.S.C. § 2422(b),” Root, 296 F.3d at 1227, Davis’s

trial counsel was not ineffective for having failed to raise meritless issues.

B. Failure to File a Direct Appeal

      Next, we address Davis’s claim that his trial counsel was ineffective for

failing to file a notice of appeal. The district court held an evidentiary hearing in

which Davis, three members of his family, and his trial counsel testified regarding

Davis’s purported request to his trial counsel to file a notice of appeal. Davis’s


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defense counsel, Julie George, testified that after the district court sentenced

Davis, she had a conversation with Davis and his family concerning a possible

appeal. George stated that she informed Davis that he had a couple of viable

appellate issues, and asked him whether he wanted her to file an appeal. George

recalled that Davis’s father shook his head and said, “no,” and that Davis also

shook his head and mumbled, “no.” According to George, Davis and his family

appeared confused and devastated over what had transpired at Davis’s sentencing

hearing. Ms. George stated that when she received a copy of Davis’s judgment

and conviction order, she mailed Davis a copy, along with a letter informing him

of his option to appeal and asking him to respond to her in writing. George

testified that she followed up by calling Davis and leaving him a message that the

time for appeal was short and that he needed to let her know what he wanted to

do. George testified that Davis never replied to her letter or phone message.

      Davis and his family offered a different version of events. Davis recalled

the district court advising him that he had ten days to file an appeal. According

to Davis, after the sentencing hearing he affirmatively requested that George file

an appeal on his behalf. Davis denied receiving a letter from George regarding

his right to appeal, but he acknowledged that he was living at the address listed

on the letter. Davis also asserted that long after the ten days for appeal expired,

George told him that he needed to write a letter giving up his right to appeal and


                                          -6-
to present it to the prison officials when he self-surrendered. 3 Davis and his

family members also testified that on the day of sentencing, at George’s office,

George informed them that if Davis was her child, she would not file an appeal.

Moreover, they stated that George advised them that if he tried to appeal, then the

district court would sentence him to an additional five years in prison for perjury.

George denied giving such advice.

      The district court issued a written order, concluding that “Mr. Davis’s trial

counsel fulfilled her obligation to inform Mr. Davis of his right to appeal; Mr.

Davis simply did not act on that right.” Applt. Br., Addendum at 5. The district

court determined that George “was a very credible witness at the hearing,” noting

that she was an experienced trial attorney. Id. The district court stated that it did

not believe Davis’s testimony that he did not receive a letter from George. Id. at

6. The district court relied on the fact that the letter was addressed to Davis’s

current residence and George’s testimony that the letter was not returned to her.

Id. The district court also cited George’s decision to leave a phone message at

the number she had reached Davis on prior occasions. Id. at 7. Finally, the

district court noted that Davis’s confusion over the possibility of a five year

perjury charge could have stemmed from the district court’s statement during



3
       The record reveals that the district court permitted Davis to self-surrender
after he completed his semester at college.

                                         -7-
sentencing that Davis’s testimony at trial was contrary to the jury’s finding of

guilt. Id. at 6 n.3

       Davis now criticizes the district court’s decision to accept George’s

testimony, and in turn, to disregard his testimony, as well as his family’s.

He posits that “[i]f a defense attorney can control whether or not a defendant

receives an appeal from a jury trial by simply stating the defendant never

requested an appeal, then every defendant’s rights could effectively be eviscerated

by a statement of counsel.” Aplt. Br. at 14. Davis asks, rhetorically, why he

would insist on proceeding to a jury trial and then decline to file a direct appeal

when he has nothing to lose and everything to gain? We are not persuaded.

       “A claim of ineffective assistance of counsel presents a mixed question of

fact and law, which we review de novo.” United States v. Holder, 410 F.3d 651,

654 (10th Cir. 2005). “Moreover, we review a district court’s factual findings

based on live testimony presented at the evidentiary hearing only for clear error.”

Romero v. Tansy, 46 F.3d 1024, 1028 (10th Cir. 1995) (citation omitted). After

reviewing the transcript of the evidentiary hearing, we conclude that Davis has

not demonstrated that jurists of reason could disagree with the district court’s

resolution of his claim. The district court’s ruling hinged on the credibility of the

witnesses, a responsibility squarely falling within the province of the district

court. United States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999). The district


                                          -8-
court took an active role in the questioning of each witness and was quite familiar

with Davis’s case after presiding over his jury trial. The district court’s reasons

for denying Davis’s claim are sound, and its factual findings are not clearly

erroneous. We cannot conclude that Davis’s claim is adequate to deserve

encouragement to proceed further.



      Accordingly, we DENY Douglas’s request for a COA and DISMISS this

matter.

                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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