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

                             FOR THE TENTH CIRCUIT                            September 5, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 18-6014
                                                    (D.C. Nos. 5:17-CV-00161-M &
DENNIS M. MULLINS,                                       5:13-CR-00264-M-1)
                                                             (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges.
                  _________________________________

       Dennis M. Mullins, a pro se federal prisoner, seeks a certificate of appealability

(COA) to challenge a district court order that denied his 28 U.S.C. § 2255 motion for

sentencing relief. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny

Mullins’ application and dismiss this appeal.

                                    I. BACKGROUND

       In 2014, Mullins pled guilty to transporting and receiving child pornography.

Multiple sentencing enhancements were applied to his base offense level, including:

       *      a five-level enhancement for engaging in a pattern of activity involving the
              sexual abuse of a minor—here, two of his daughters and stepson, see


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
              U.S. Sentencing Guidelines Manual (USSG) § 2G2.2(b)(5) (U.S.
              Sentencing Comm’n 2013);
       *      a four-level enhancement for transporting and receiving material portraying
              sadistic or masochistic conduct, see id. § 2G2.2(b)(4);
       *      a two-level enhancement for distributing child pornography via a
              file-sharing program, see id. § 2G2.2(b)(3)(F); and
       *      a two-level enhancement for transporting and receiving material involving a
              minor under the age of twelve, see id. § 2G2.2(b)(2).

       Mullins’ total offense level was ultimately calculated to be thirty nine, and his

criminal history category was set at one. The resulting Guideline sentence range was

262 to 327 months’ imprisonment. See USSG ch. 5 pt. A. The statutory maximum

sentence for each of the two pornography counts was 240 months. See 18 U.S.C.

§ 2252(b)(1). The district court “referenced the calculated Guidelines range in

determining an appropriate sentence” and then sentenced Mullins to the statutory

maximums, running them concurrently. United States v. Mullins, 632 F. App’x 499, 503

(10th Cir. 2015).

       Mullins appealed the sentence, challenging the pattern-of-activity enhancement as

unconstitutional and unsupported by the evidence. A panel of this court affirmed. Id. at

507.

       Mullins then filed the instant § 2255 motion, arguing that his counsel was

ineffective in handling his guilty plea and sentencing, and that a 2016 Guideline

amendment retroactively negates his distribution enhancement. The district court denied

the motion without an evidentiary hearing and declined to issue a COA. Mullins now

renews his request for a COA on four grounds: (1) the district court’s “refus[al] to

provide . . . transcripts of relevant hearings”; (2) “ineffective assistance of counsel for


                                               2
failing to interview relevant witnesses”; (3) “ineffective assistance of counsel for failing

to challenge the pattern of activity enhancement”; and (4) the district court’s refusal to

retroactively apply Guideline Amendment 801. COA Request at 3-4 (emphasis omitted).

                                     II. DISCUSSION
                                 A. Standards of Review

       “The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,

1241 (10th Cir. 2010). To obtain a COA, Mullins must make “a substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such “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 v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). “The

COA inquiry . . . is not coextensive with a merits analysis,” Buck v. Davis, 137 S. Ct.

759, 773 (2017), and is limited to “an overview of the claims in the habeas petition and a

general assessment of their merits,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

                                      B. Transcripts

       Mullins argues that the district court “actively took steps to deprive [him] of [an]

impartial and disinterested tribunal” by “refus[ing]” to provide him the sentencing

transcripts cited in the government’s opposition to his § 2255 motion. COA Request at 5.

But the district court did no such thing. Rather, in June 2017, the district court granted

Mullins’ motion for transcripts and ordered the government to provide them. The district

court also extended the time period in which Mullins could file a reply brief, setting the


                                              3
deadline at thirty days from his receipt of the transcripts. Nevertheless, Mullins filed his

reply brief in the district court soon after the district court entered its order—apparently,

before he received any transcripts. Six months later, the district court denied his § 2255

motion. In that six-month period, Mullins filed two motions inquiring about the status of

his case, but he did not inform the district court that he had not received the transcripts.

Given Mullins’ silence on the issue, we will not fault the district court for resolving his

§ 2255 motion despite his purported non-receipt of the transcripts. Moreover, Mullins

does not indicate which government argument(s) he was unable to adequately address

without the transcripts. In particular, he has surmised no “legally salient” information in

the transcripts that might entitle him to relief. See United States v. Pursley, 550 F. App’x

575, 579-80 (10th Cir. 2013) (concluding that the district court did not err in denying

prisoner’s request for transcripts, where there was no showing that the transcripts had any

bearing on his entitlement to postconviction relief). Although we liberally construe pro

se filings, we will not craft a party’s arguments or otherwise serve as an advocate. See

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008); Perry v. Woodward, 199 F.3d

1126, 1141 n.13 (10th Cir. 1999).

                           C. Ineffective Assistance of Counsel

       An ineffective-assistance claim has two components. First, the movant “must

show that counsel’s performance was deficient.” Strickland v. Washington, 466 U.S.

668, 687 (1984). The challenged conduct must be evaluated from counsel’s perspective

at the time of the alleged error, and “every effort should be made to eliminate the

distorting effects of hindsight.” Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996)

                                              4
(internal quotation marks omitted). Second, the movant must also show “that the

deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. In other

words, there must be “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.

1.     Failure to Interview Relevant Witnesses

       Mullins argues that his counsel was ineffective in not interviewing two of the three

victims—stepson Matthew Whitefield and daughter Denise Mullins—as well as his wife

(Rhonda Mullins), sister (Judy Bowermaster), and third daughter (Angela Mullins, who

was not included in the pattern-of-activity enhancement). All five of these family

members have provided affidavits in support of relief from the pattern-of-activity

enhancement.1

       In assessing counsel’s performance, the district court focused on counsel’s failure

to interview Whitefield, given this court’s observation on direct appeal that Whitefield’s

statements to investigators were sufficient by themselves to support the enhancement.

Specifically, Whitefield told investigators that beginning in the third grade, Mullins

showed him pornography, demonstrated masturbation, and masturbated him on more than

one occasion. The district court additionally cited Whitefield’s written statement at

sentencing, in which he forgave Mullins and did not deny the abuse. As for Whitefield’s

       1
         In summary, the family members’ affidavits provide the following. Whitefield
“retract[s] [his] previous statement,” which he claims “was taken using intimidation and
coercion.” R., Vol. V at 86. Denise claims that her prior statements were “taken out of
context.” Id. at 89. Rhonda offers various reasons she disbelieves the claims made by
Mullins’ other daughter, Julie. Angela states that “[n]othing ever happened to [her] while
in [her] father’s care,” and she believes Julie lacks “sound mind.” Id. at 83. Finally,
Mullins’ sister states that Mullins’ ex-wife admitted Julie is dishonest.
                                             5
affidavit submitted in support of § 2255 relief, the district court noted that while he

retracts his statements, he does not state Mullins did not abuse him. Based on these

circumstances, the district court determined that counsel’s failure to interview Whitefield

was not deficient, given “counsel’s perspective at the time of the alleged error.”

R., Vol. V at 182.

       We conclude that the district court’s determination is not debatable. The entirety

of the circumstances at the time of Mullins’ sentencing provided no indication that

interviewing Whitefield would have yielded information undermining imposition of the

pattern-of-activity enhancement. In addition to the circumstances cited by the district

court, we add that at sentencing, Mullins addressed the court and did not deny the abuse

allegations; rather, he indicated he could not remember. See Mullins, 632 F. App’x

at 502. Moreover, Mullins’ wife told investigators that her son, Whitefield, had

“confronted Mullins about what he had done,” and she “implied [that] Mullins had

inappropriately touched [Whitefield] when he[ ] was a minor.” Id. at 501 (internal

quotation marks omitted). In short, counsel’s failure to predict that Whitefield would

ultimately retract his statements to investigators does not render it debatable that

counsel’s failure to interview Whitefield was deficient. See Bullock v. Carver, 297 F.3d

1036, 1052 (10th Cir. 2002) (stating that “clairvoyance is not a required attribute of

effective representation” (internal quotation marks omitted)). And because Whitefield’s

statements alone supported the pattern-of-activity enhancement, we agree with the district

court that even if it were debatable that Mullins’ counsel performed deficiently by not



                                              6
interviewing the other family members, the district court’s conclusion that any such

omission was not prejudicial is not debatable.2

2.     Failure to Challenge the Pattern-of-Activity Enhancement

       Mullins’ request for a COA on this ground appears to raise the district court’s

denial of his twelfth ground for § 2255 relief. Specifically, in the district court, Mullins

argued that defense counsel “provided ineffective assistance of counsel by failing to

obtain available evidence to present on appeal regarding the pattern of activity

enhancement.” R., Vol. V at 74.3 Mullins elaborated that, had his counsel “conducted

the required investigation[,] he would have discovered that Matthew Whitefield’s

testimony was used improperly and was actually withdrawn” and that “Julie Mullins was

a liar.” Id. at 75. According to Mullins, these discoveries would have prompted this

court on direct appeal to invalidate the pattern-of-activity enhancement.

       The district court denied relief, referring to its determinations that (1) counsel’s

failure to interview Whitefield was not deficient performance, given counsel’s

perspective at the time of sentencing; and (2) counsel’s failure to interview/investigate

the other family members was not prejudicial, given that Whitefield’s statements were

alone sufficient to support the enhancement. We conclude that the district court’s denial


       2
         To the extent Mullins complains that counsel’s investigation of Julie’s
allegations was deficient, the district court correctly determined that such performance
would not have been prejudicial, given the sufficiency of Whitefield’s sentencing
statements in supporting the enhancement.
       3
        Mullins concedes in his request for a COA that his counsel in fact challenged the
pattern-of-activity enhancement at sentencing: “The Appellant objected to this
enhancement when the PSR was written.” COA Request at 11.
                                              7
of relief on this ground is not debatable. As we stressed above, counsel’s performance

must be evaluated without “the distorting effects of hindsight.” Edens, 87 F.3d at 1114

(internal quotation marks omitted). Specifically, Whitefield did not retract his statements

until a year after this court decided Mullins’ direct appeal. It hardly bears pointing out

that Mullins’ counsel could not have acted on Whitefield’s retraction of his statements

until Whitefield actually did so.4

                              D. Guideline Amendment 801

       When Mullins was sentenced in September 2014, the law in this circuit did not

impose a mens rea requirement for a § 2G2.2(b)(3)(F) distribution enhancement.

See United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013) (“hold[ing] that

§ 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability

of the program he is using to view child pornography”). In November 2016, the

Sentencing Commission rejected Ray by issuing Amendment 801, which added language

to the enhancement requiring that “the defendant knowingly engaged in distribution.”

See USSG app. C, amend. 801, at 140 (Supp. Nov. 1, 2016). The Commission noted that

the circuits were split on the mens rea issue and it decided to “adopt[ ] the approach” of

the circuits requiring “that the defendant knew of the file-sharing properties of the

program.” Id. at 145. In doing so, the Commission stated that the knowledge




       4
         To the extent Mullins argues that Whitefield’s affidavit “calls into question this
court’s previous ruling” on direct appeal, COA Request at 11, we point out that § 2255 is
not a vehicle to relitigate issues already decided, see United States v. Rodriguez, 768 F.3d
1270, 1272 (10th Cir. 2014).
                                              8
requirement was “[b]ased on testimony, public comment, and data analysis,” id. at 145,

and was necessary to “clarify[ ] the mental state required for distribution,” id. at 146.

       Citing Amendment 801, Mullins contends not only that his two-level distribution

enhancement should be removed, but also that he should receive a further two-level

reduction in his offense level under USSG § 2G2.2(b)(1), which generally applies if “the

defendant’s conduct was limited to the receipt or solicitation of material involving the

sexual exploitation of a minor” and there was no intent “to traffic in, or distribute, such

material.” The district court determined that Amendment 801 does not retroactively

apply because the amendment effected a substantive change in the legal landscape, rather

than a mere clarification. See United States v. Winder, 557 F.3d 1129, 1136 (10th Cir.

2009) (observing that “a subsequent amendment to the Guidelines can sometimes be

given retroactive effect if the changes are clarifying rather than substantive” (internal

quotation marks omitted)). We conclude that the district court’s determination is not

debatable.5

       Generally, an amendment is clarifying if “it does not overrule existing precedent,

it revises a commentary note rather than a guideline, and the authors characterized it as

clarifying.” United States v. Gigley, 213 F.3d 503, 506 n.3 (10th Cir. 2000). Only the

       5
          We note that Amendment 801 is not listed in U.S.S.G. § 1B1.10(d) as having
retroactive effect for purposes of 18 U.S.C. § 3582(c)(2). For that reason, Mullins
properly seeks relief under 28 U.S.C. § 2255, instead of 18 U.S.C. § 3582, by arguing
that the amendment is clarifying, rather than substantive. See United States v. Ramirez,
698 F. App’x 943, 946 (10th Cir. 2017) (observing that a retroactive sentencing
clarification bears on “‘whether a defendant was correctly sentenced under the guidelines
in the first place,’” which implicates § 2255, rather than § 3582(c)(2) (quoting United
States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003)).

                                              9
third factor appears to weigh in favor of Amendment 801 being a clarifying amendment.

In particular, the Commission explained that the amendment was necessary to “clarify[ ]”

the requisite mental state for distribution. But the Commission also indicated it was

“adopt[ing]” an approach not previously specified in the enhancement. In any event, the

other two factors reveal that the amendment is substantive, as it overruled our existing

precedent and revised the enhancement’s language, not just the language of the

commentary. See United States v. Groves, 369 F.3d 1178, 1183 (10th Cir. 2004) (“If a

guideline amendment contradicts either the plain meaning of the preexisting guideline or

controlling case law, that amendment is necessarily substantive.”).

                                   III. CONCLUSION6

       We deny Mullins’ application for a COA and we dismiss this appeal.
                                             Entered for the Court


                                             Joel M. Carson
                                             Circuit Judge




       6
         Insofar as Mullins challenges the district court’s decision to resolve his § 2255
motion without an evidentiary hearing, an evidentiary hearing on a § 2255 motion is
unnecessary if “the motion and files and records of the case conclusively show that the
prisoner is entitled to no relief.” United States v. Lopez, 100 F.3d 113, 119 (10th Cir.
1996) (internal quotation marks omitted). For the reasons discussed throughout this
order, we conclude that reasonable jurists could not debate whether the district court’s
decision to forgo an evidentiary hearing was an abuse of discretion. See United States v.
Gonzalez, 596 F.3d 1228, 1244 (10th Cir. 2010) (denying request for COA on failure to
conduct evidentiary hearing because “there were no relevant, disputed issues of fact that
needed to be resolved”); Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 860 (10th Cir.
2005) (recognizing that an evidentiary hearing is not necessary when “[t]he record refutes
the claim of ineffective assistance”).
                                            10
