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

                               FOR THE TENTH CIRCUIT                           August 13, 2020
                           _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                            No. 20-6037
                                                      (D.C. Nos. 5:19-CV-00975-R &
 JAMES CORNELIUS CHRISTIAN,                                5:17-CR-00068-R-1)
                                                               (W.D. Okla.)
          Defendant - Appellant.
                         _________________________________

               ORDER DENYING CERTIFICATE OF APPEALABILITY*
                      _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

       James Christian seeks a certificate of appealability (“COA”) to appeal the district

court’s denial of his motion under 28 U.S.C. § 2255. We deny a COA and dismiss this

appeal.

                                             I

       In 2017, Christian was charged with two counts of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). At trial, Christian argued that the government

entrapped him because its confidential informant had maintained a close, sexual

relationship with him. After the jury acquitted him on the first count but returned a guilty



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
verdict on the second count, the court sentenced Christian to 235 months’ imprisonment.

On direct appeal, Christian’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Christian filed a pro se response. We affirmed his conviction and

sentence. United States v. Christian, 754 F. App’x 747 (10th Cir. 2018) (unpublished).

       Christian filed a motion to vacate, set aside, or correct his sentence pursuant to

§ 2255. He brought eight claims, arguing that: (1) his Sixth Amendment rights were

violated because he was denied his right to counsel; (2) his Fourth Amendment rights

were violated because the confidential informant spent time in his home; (3) his Fourth

Amendment rights were violated because the confidential informant used drugs in his

presence; (4) his Fifth Amendment right to be free from forced self-incrimination was

violated; (5) his Fourth Amendment rights were violated because the confidential

informant placed him in danger by using drugs while they had sex; (6) his Fourth

Amendment rights were violated because the confidential informant perjured herself; (7)

his Sixth Amendment rights were violated because the government refused to turn over

recordings of phone conversations he had with the confidential informant; and (8) his

Fourteenth Amendment rights were violated because the confidential informant conspired

with a federal agent and because he is being denied equal protection.

       The district court deemed all of the claims except ground seven to be either

matters “raised and adjudicated on direct appeal” and therefore not appropriate for

reconsideration, Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013), or “matters

which should have been raised on appeal” and therefore barred absent a showing of cause

and prejudice, see United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (quotation

                                              2
omitted). Christian attempted to surmount the procedural bar by arguing that grounds

one and two were premised on newly discovered evidence that was not previously

available. The district court concluded that the evidence he identified was not newly

discovered.

         With respect to ground seven, the court concluded that Christian failed to

demonstrate that counsel’s performance was deficient. See Strickland v. Washington,

466 U.S. 668 (1984). Because the record demonstrated that there were no recordings of

phone calls between the confidential informant and Christian, the court concluded that

counsel was not deficient in failing to procure recordings that did not exist. The court

denied Christian’s motion and denied him a COA. Christian now seeks a COA from this

court.

                                              II

         A prisoner may not appeal the denial of habeas relief under § 2255 without a

COA. 28 U.S.C. § 2253(c)(1)(B). We will grant a COA only if “reasonable jurists could

debate whether (or, for that matter, agree that) 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) (quotation omitted). If a

district court dismisses a § 2255 motion on procedural grounds, we will issue a COA only

if “jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right, and . . . jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Id. Because Christian proceeds



                                               3
pro se, we liberally construe his pleadings but “do not assume the role of advocate.”

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation omitted).

       Christian concedes on appeal that all of his claims except for ground seven were

raised on direct appeal. Review of these claims is therefore barred by the law of the

case.1 See Abernathy, 713 F.3d at 549. There are three exceptions to the law-of-the-case

doctrine: “(1) when the evidence in a subsequent trial is substantially different; (2) when

controlling authority has subsequently made a contrary decision of the law applicable to

such issues; or (3) when the decision was clearly erroneous and would work a manifest

injustice.” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998); see also

United States v. Trent, 884 F.3d 985, 995 (10th Cir.), cert. denied, 139 S. Ct. 615 (2018)

(exceptions apply to § 2255 motions). Christian does not argue that grounds one to six

and eight fall into any of these exceptions. Accordingly, we deny a COA as to these

claims.

       In his remaining claim, ground seven, Christian argues that his counsel was

constitutionally ineffective because his counsel failed to uncover favorable evidence.2

Specifically, Christian argues that his counsel should have secured copies of recordings



       1
          The district court concluded that all claims were either raised on direct appeal or
procedurally barred because they should have been raised on direct appeal. Although the
district court did not specify which claims fell into which category, we need not address
this issue because of Christian’s concession.
       2
        Although Christian does not frame ground seven as an ineffective-assistance-of-
counsel claim in his opening brief, we, like the district court, construe it as such a claim.
To the extent Christian argues that the trial court erred in failing to provide the
recordings, he concedes that he raised this issue on direct appeal.
                                              4
of phone calls he made to the confidential informant. To succeed on an ineffective

assistance claim, a prisoner must establish “that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment” and that “the deficient performance prejudiced the defense.” Strickland,

466 U.S. at 687.

       Christian asserts that he repeatedly asked for the recordings. However, as the

district court noted, there was record evidence that there were no recordings made of the

informant’s conversations with Christian. The court concluded that Christian’s counsel

was not ineffective for failing to provide Christian with tapes that do not exist. We agree.

Without evidence that the tapes exist, Christian cannot demonstrate that his counsel was

deficient in failing to procure them.3 See id.

       For these reasons, we conclude that reasonable jurists would not disagree with the

district court’s ruling.




       3
         In his opening brief, Christian raises several other arguments that his counsel was
ineffective, including that counsel (1) submitted an Anders brief on direct appeal, (2)
failed to impeach the federal agent’s testimony about the lack of recordings, (3) failed to
argue that the confidential informant put Christian’s life in danger, (4) failed to argue
“right to privacy—secret agent” about the confidential informant’s access to Christian’s
home, and (5) discriminated against Christian because he was black and a felon.
However, Christian raised none of these arguments before the district court. We
therefore decline to consider them. See Harmon v. Sharp, 936 F.3d 1044, 1069 (10th Cir.
2019).
                                             5
                                     III

     We DENY a COA and DISMISS this appeal. Christian’s motion to proceed in

forma pauperis is GRANTED.




                                      Entered for the Court


                                      Carlos F. Lucero
                                      Circuit Judge




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