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

                            FOR THE TENTH CIRCUIT                             December 2, 2019
                        _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 19-1027
                                                    (D.C. Nos. 1:18-CV-00703-RBJ &
 MICHAEL ALVARES FYKES,                                  1:15-CR-00221-RBJ-1)
                                                                (D. Colo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY ∗
                   _________________________________

Before HARTZ, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

       Michael Alvares Fykes, a pro se federal prisoner, seeks a certificate of

appealability (COA) to challenge a district court order that denied his motion to vacate

his felon-in-possession-of-a-firearm sentence. We deny a COA and dismiss this matter.

We also deny Fykes’ motion to proceed in forma pauperis (IFP).

                                      BACKGROUND

       In February 2015, police in Colorado arrested two men in a car—Fykes, who had

prior felony convictions, and Ron Trueblood—on suspicion of human trafficking. While

searching the car, police found a backpack that contained a loaded revolver, Fykes’



       ∗
         This order is not binding precedent except under the doctrines of law of the case,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.
passport, a laptop computer containing one of Fykes’ medical documents, a cell phone

charger that fit Fykes’ cell phones, and miniature cigars similar to those found in the car

near Fykes.

         Fykes admitted he owned the backpack, but he denied ownership of the handgun.

He suggested that Trueblood may have placed the gun in the backpack when he borrowed

the pack from Fykes.

         In May 2015, a federal grand jury indicted Fykes on one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Colorado trafficking and

gun charges were dismissed the following month. At some point before Fykes went to

trial on the federal gun charge, Trueblood left Colorado and did not return.

         In August 2015, following a three-day trial, a jury convicted Fykes as charged.

The district court sentenced him to 60 months’ imprisonment and 3 years’ supervised

release. This court affirmed. See United States v. Fykes, 678 F. App’x 677 (10th Cir.

2017).

         In 2018, Fykes moved pro se under 28 U.S.C. § 2255 to vacate his sentence due to

ineffective assistance of trial counsel and cumulative error. The district court denied the

motion and declined to issue a COA.

                                         DISCUSSION
                                   I. Standards of Review

         A COA is a jurisdictional prerequisite to our review of the denial of § 2255 relief.

See United States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013). To obtain a COA,

Fykes must make “a substantial showing of the denial of a constitutional right.”


                                               2
28 U.S.C. § 2253(c)(2). This requires Fykes to “demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because Fykes appears pro se,

we liberally construe his filings, but we do not act as his advocate. See Gallagher v.

Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).

                        II. Ineffective Assistance of Trial Counsel

       To prevail on a claim of ineffective assistance of counsel, a defendant must show

both that his counsel’s performance was deficient and that the deficiency prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Fykes advances the

following three ineffective-assistance claims.

A.     Hearsay

       First, Fykes claims that defense counsel was ineffective by not objecting on the

ground of hearsay when Detective Jason Blanscet testified that during Trueblood’s

interrogation, Trueblood said the gun belonged to Fykes. The district court did not

address this claim, however, as Fykes did not present it in his § 2255 motion. It is

axiomatic that a district court cannot be debatably wrong on issues that were not fairly

presented to or decided by it. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.

2012) (denying a COA on issues that were first raised in an appellate reply brief and not

presented to the district court); see also Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13

(10th Cir. 2013) (“We do not generally consider issues that were not raised before the

district court as part of the habeas petition.”).



                                                3
B.     Witnesses

       Second, Fykes claims that his counsel was ineffective by not calling as witnesses

Trueblood and attorney Phillip Dubois, who represented Fykes in his Colorado criminal

proceedings. Dubois executed an affidavit in support of Fykes’ § 2255 motion stating he

overheard Trueblood in March 2015 admit that the gun was his.

       The district court concluded that Fykes’ trial counsel did not perform deficiently

as to either Trueblood or Dubois. Regarding defense counsel’s decision to not call

Trueblood as a witness, the district court noted that roughly two months before trial, a

defense investigator successfully reached Trueblood by phone. Trueblood was reluctant

to speak with the investigator, but Trueblood indicated he was homeless and “moving

from location to location in Minnesota.” R., Vol. III at 51. Also, he denied ever

borrowing a backpack from Fykes and adamantly stated that the gun was not his and that

he knew nothing about it.

       Based on these facts, the district court determined that defense counsel made an

objectively reasonable strategic decision to not call Trueblood as a witness. See United

States v. Holloway, 939 F.3d 1088, 1103 (10th Cir. 2019) (“To be constitutionally

deficient, counsel’s performance must have been completely unreasonable, not merely

wrong, so that it bears no relationship to a possible defense strategy.” (internal quotation

marks omitted)). We agree. Trueblood’s statements would have been very damaging to

Fykes’ defense, as they directly refuted Fykes’ theory about how a gun supposedly

belonging to Trueblood got into Fykes’ backpack.



                                              4
       Granted, during the phone call with the investigator, Trueblood denied telling

Detective Blanscet that the gun “must be[long]” to Fykes. R., Vol. III at 53 (internal

quotation marks omitted). But that denial would not have measurably assisted Fykes,

given that Trueblood asserted the gun was not his, thereby suggesting by the process of

elimination that it “must be[long]” to Fykes. We conclude that reasonable jurists could

not debate the district court’s determination that Fykes’ counsel did not perform

deficiently by not calling Trueblood as a witness. 1

       As for defense counsel not calling Dubois as a trial witness, the district court

noted, among other things, that there was no evidence defense counsel was aware that

Dubois had overheard anything about who the gun belonged to. Indeed, Dubois executed

his affidavit in March 2018—nearly two-and-a-half years after Fykes’ trial. “We

evaluate conduct from counsel’s perspective at the time, not in hindsight.” Hooks v.

Workman, 689 F.3d 1148, 1189 (10th Cir. 2012). Reasonable jurists could not debate the

district court’s determination that Fykes’ counsel did not perform deficiently by not

calling Dubois as a witness.




       1
         Fykes appears to take issue with the district court’s additional determination that
no prejudice resulted from Trueblood not being called as a witness. We need not reach
Strickland’s prejudice prong because we have already concluded that the district court’s
deficient-performance analysis is not debatable. See Strickland, 466 U.S. at 700 (“Failure
to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.”).

                                              5
C.     The Presentence Investigation Report (PSR)

       Fykes claims that defense counsel was ineffective by not objecting before

sentencing to human-trafficking references in the PSR. 2 Fykes argues that he was not

convicted of trafficking and that he has been prejudiced by trafficking references because

they affect “[t]he outcome of [his] efforts for rehabilitation and custody classification.”

Combined Opening Br. & Appl. for COA at 9. The district court denied the claim,

simply stating that defense counsel did not provide ineffective assistance.

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

determination. Fykes has identified no ground on which defense counsel could have

blocked accurate references in the PSR to the background criminal activity that led to his

arrest and ultimate conviction for unlawfully possessing a firearm. Cf. United States v.

Harris, 447 F.3d 1300, 1306 (10th Cir. 2006) (indicating that a defendant’s failure to

challenge the factual accuracy of a PSR allows a district court to rely on undisputed

portions as factual findings); United States v. Mateo, 471 F.3d 1162, 1167 (10th Cir.

2006) (stating that “no limitation should be placed on the information concerning the

background, character, and conduct of a person for the purpose of imposing an

appropriate sentence” (alterations and internal quotation marks omitted)). Counsel is not



       2
         Defense counsel did file a post-sentencing motion to remove from the PSR “the
uncharged and unproven pimping allegations” so the Bureau of Prisons “would have to
reclassify [Fykes’] custody score and re-designate him to a minimum security facility.”
R., Vol. I at 134. The district court ultimately dismissed that motion for lack of
jurisdiction as directed by this court in United States v. Fykes, 733 F. App’x 950, 953
(10th Cir. 2018).

                                              6
ineffective for failing to raise a meritless objection. See Sperry v. McKune, 445 F.3d

1268, 1275 (10th Cir. 2006).

                                  III. Cumulative Error

       Finally, Fykes “argues that cumulative error analysis is appropriate because the

Tenth Circuit has already recognized one harmless error in MR. FYKES and the

petitioner has raised both related and unrelated claims in his § 2255 [motion].”

Combined Opening Br. & Appl. for COA at 9. 3 The district court did not mention Fykes’

cumulative error argument. In any event, Fykes provides no clarity regarding the basis

for his argument, and we will not construct arguments for him. See Gallagher, 587 F.3d

at 1067. In short, Fykes identifies no discernible basis on which to obtain a COA on the

ground of cumulative error. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir.

2004) (declining to consider “issues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation” (internal quotation marks omitted)).

                                       CONCLUSION

       We deny Fykes’ request for a COA and dismiss this matter. We also deny Fykes’

motion to proceed IFP as Fykes has not asserted a reasoned, nonfrivolous argument in

support of his position. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.

2005) (“[I]n order to succeed on a motion to proceed IFP, the movant must show a



       3
         In Fykes’ direct appeal, this court identified two non-prejudicial errors: (1) the
jury instruction defining constructive possession failed to include the element of “intent
to exercise dominion or control over the handgun,” Fykes, 678 F. App’x. at 679; and
(2) the “district court procedurally erred by departing from the applicable sentencing
range without providing the necessary notice,” id. at 687.
                                              7
financial inability to pay the required filing fees, as well as the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised in the action.”).

Finally, we deny Fykes’ “Motion for Limited Remand.”


                                               Entered for the Court


                                               Nancy L. Moritz
                                               Circuit Judge




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