                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 6, 2014
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 14-3160
                                               (D.C. Nos. 6:14-CV-01140-EFM
    BRUCE A. MABRY,                               & 6:11-CR-10102-EFM-1)
                                                         (D. Kansas)
                Defendant-Appellant.


                                       ORDER


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. Bruce Mabry was on parole, at home with his girlfriend, when two law

enforcement officers came to the door to serve Mr. Mabry with a warrant. The

officers talked with the girlfriend, then entered and found Mr. Mabry, along with

a sawed-off shotgun. Tr. Mot. Suppress Hr’g at 40, 44-45, 65. The firearm was

not registered, and Mr. Mabry was charged with possession of an unregistered

firearm.

         His attorneys unsuccessfully moved to suppress evidence of the firearm,

and Mr. Mabry pleaded guilty. After an unsuccessful appeal, 1 Mr. Mabry moved



1
         United States v. Mabry, 728 F.3d 1163, 1170 (10th Cir. 2013).
to vacate the sentence under 28 U.S.C. § 2255. That motion contained allegations

that

       (1)   officers should not have entered the girlfriend’s residence because
             they lacked reasonable suspicion that Mr. Mabry was inside, and

       (2)   defense counsel was ineffective for failing to challenge the search on
             this ground.

The district court denied relief under § 2255. Mr. Mabry wants to appeal and, in

order to do so, he asks us for a certificate of appealability. This request is denied.

       We can issue a certificate of appealability only if Mr. Mabry has made “a

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

§ 2253(c)(2) (2012). To satisfy this requirement, Mr. Mabry must show that

“reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or 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)), superseded by statute, Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as recognized in Slack, 529

U.S. at 483-84) (internal quotation mark omitted). Under this test, Mr. Mabry

must show “that the district court’s resolution of the constitutional claim was

either ‘debatable or wrong.’” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir.

2007) (quoting Slack, 529 U.S. at 484).




                                          -2-
       We apply this standard to assess the viability of the underlying claim:

ineffective assistance of counsel. On this claim, Mr. Mabry would need to show

that

       !      his counsel’s representation “fell below an objective standard of
              reasonableness,” and

       !      “there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceeding would have been
              different.”

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). In applying these

elements, reasonable jurists could not debate the outcome.

       Mr. Mabry claims that his attorney should have challenged the search on

the ground that officers had lacked reasonable suspicion to believe that he was

inside the residence. 2 From the existing record, no reasonable jurist could credit

this claim.

       For this challenge, Mr. Mabry relies solely on the evidence presented at the

hearing on the motion to suppress. This evidence showed:

       !      Mr. Mabry had obtained approval from his parole officer to move in
              with the girlfriend at 1301 North Bitting, and




2
      When the officers went to the residence, they had a warrant. Tr. Mot.
Suppress Hr’g at 12-13. With this warrant, the officers could enter as long as
they had reason to believe Mr. Mabry was in the residence. See Payton v. New
York, 445 U.S. 573, 603 (1980).

                                         -3-
      !      the agent who confronted the girlfriend knew that Mr. Mabry’s last
             reported address was 1301 North Bitting. 3

Tr. Mot. Suppress Hr’g at 9-11, 25-26, 39.

      Mr. Mabry counters this evidence by claiming that the girlfriend has denied

that he was present and tried to close the door. But Mr. Mabry has misstated the

evidence.

      The parties stipulated that the girlfriend had not wanted the officers to

enter. Id. at 80. But, neither Mr. Mabry nor the girlfriend testified at the hearing.

The only witnesses to testify about the scene at the doorway were the two officers

who spoke with the girlfriend: Warren Evans and Tricia Tiede. Id. at 2, 40, 51-

52. Officer Evans testified that when the door was opened, he told the girlfriend

that he was there for Mr. Mabry and she responded that he was in the shower or

the bathroom. Id. at 40, 51. Then, according to Officer Evans, he saw Mr.

Mabry. Id. at 40, 51-52. Officer Evans later confirmed that there was “no

question” that the man he had seen was Bruce Mabry. Id. at 41. 4

      Based on this evidence, no reasonable jurist could fault Mr. Mabry’s

attorney for her strategy. The undisputed evidence at the hearing was that Mr.


3
       In his memorandum seeking relief under § 2255, Mr. Mabry acknowledged
that Officer Evans had looked for the last reported address, found the address for
the girlfriend, and gone there to make the arrest. R. at 39, 42.
4
      Officer Tiede testified that she had not seen Mr. Mabry and that Officer
Evans had been the one who knocked on the door and did the talking. Mot.
Suppress Hr’g at 71.

                                         -4-
Mabry lived in the residence, it was his last known address, the girlfriend told

Officer Evans that Mr. Mabry was inside the residence (in the shower or

bathroom), and Officer Evans saw Mr. Mabry before entering. Faced with this

evidence, an attorney could justifiably decline to question the reasonableness of

the officers’ suspicion that Mr. Mabry was in the residence. And if an attorney

had made such an argument, it would not likely have convinced any judge.

      Mr. Mabry disagrees, predicting that such an argument would have

convinced the same district judge who ultimately decided to deny the motion to

suppress. For this prediction, Mr. Mabry relies on his own recollection of the

testimony and the district court’s rationale when denying the suppression motion.

      Mr. Mabry states that the suppression hearing included evidence that

      !      Officer Evans had seen Mr. Mabry only after the girlfriend tried to
             close the door, 5 and

      !      the officers had lacked any information regarding Mr. Mabry’s
             presence when the door was half closed. 6

Even with these contentions, the officers would have had:

      !      the girlfriend’s address as Mr. Mabry’s last known address,

      !      the girlfriend’s statement that Mr. Mabry was present (either in the
             bathroom or shower), and

      !      Officer Evans’s undisputed testimony that he had seen Mr. Mabry
             before the officers walked in.

5
      R. at 39-40; Appellant’s Supp. Br. at 2.
6
      R. at 42.

                                         -5-
If the officers had not seen Mr. Mabry until after the door was half-closed, they

could still have reasonably believed that Mr. Mabry was inside.

      Mr. Mabry relies not only on his own recollection of the testimony, but also

on snippets of the district court’s rationale for denying the motion to suppress.

There, the district court stated:

      !      Mr. Mabry had told the parole officer that he was living with his
             girlfriend at 1301 North Bitting,

      !      the girlfriend tried to close the door, and

      !      Officer Evans saw Mr. Mabry before the officers entered.

Mr. Mabry adds:

      !      the court could not consider the sighting of Mr. Mabry because the
             officers had stopped the girlfriend from closing the door, and

      !      without that evidence, the district court’s statements would not allow
             a reasonable officer to believe that Mr. Mabry was present.

This argument would not convince any reasonable jurist. Even with this version

of events, the evidence remained undisputed that

      !      Mr. Mabry had obtained approval to live at this residence,

      !      this residence was Mr. Mabry’s last known address, and

      !      the girlfriend said that Mr. Mabry was inside.

With this evidence, no reasonable jurist could find that the legal representation

was deficient or prejudicial.




                                          -6-
      We conclude that Mr. Mabry’s claim is not reasonably debatable.

Accordingly, we decline a certificate of appealability and dismiss the appeal.


                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




                                        -7-
