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

                             FOR THE TENTH CIRCUIT                         September 15, 2015
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-7035
                                                (D.C. Nos. 6:13-CV-00493-RAW and
TOMMY BLAKE McCARY,                                   6:11-CR-00025-RAW-1)
                                                            (E.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                  _________________________________

       Defendant Blake McCary, a federal prisoner proceeding pro se, seeks a

certificate of appealability to appeal the district court’s denial of his § 2255 habeas

petition.

       In 2009, Defendant completed the custodial portion of his sentences for

several previous convictions and was placed on supervised release. The terms of his

supervised release included random drug testing and participation in outpatient

counselling. In 2013, the government filed a petition to revoke Defendant’s

supervised release after numerous urine samples provided by Defendant tested



       *
         This order is not binding precedent, except under the doctrines of law of the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.
positive for methamphetamines and Defendant was charged in Oklahoma state court

with possession of drug paraphernalia and other prohibited items.

      During the revocation hearing, defense counsel stipulated the court could find

by a preponderance of the evidence that the alleged violations had taken place.

Defendant declined to speak and the court found, by a preponderance of the evidence,

that Defendant violated his conditions of supervised release. The court sentenced

Defendant to forty-eight months’ imprisonment.

      In his § 2255 motion, Defendant contended his counsel was ineffective. The

district court analyzed this claim under the two-part test established in Strickland v.

Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must show (1) “that

counsel’s performance was deficient” and (2) “that the deficient performance

prejudiced the defendant.” Id. at 687.

      The court found that Defendant made an insufficient showing as to both parts

of the Strickland test because defense counsel reasonably decided to stipulate to

violations rather than futilely contest them and Defendant had not demonstrated

another course of action would have produced a different result. The district court

also rejected Defendant’s general objections to the preponderance-of-the-evidence

standard used in his supervised release revocation hearing based on this circuit’s

holding that such hearings do not entitle a defendant to a jury proceeding or to the

beyond-a-reasonable-doubt standard used in criminal trials. See United States v.

Cordova, 461 F.3d 1184, 1186-88 (10th Cir. 2006). Finally, the court rejected

Defendant’s claim of “actual innocence” of violating his supervised release by

                                            2
committing the charged state drug crimes because Defendant failed to adequately

support that claim and, regardless, the court had ample evidence that Defendant

violated his release conditions even without considering the state criminal charges.

      After thoroughly reviewing Defendant’s arguments and the record on appeal,

we are persuaded that reasonable jurists would not debate the correctness of the

district court’s resolution of this claim. See Slack v. McDaniel, 529 U.S. 473, 484

(2000). Therefore, for substantially the same reasons given by the district court in its

thorough and well-reasoned opinion, we DENY Defendant’s request for a certificate

of appealability and DISMISS the appeal. We GRANT Appellant’s motion to

proceed in forma pauperis on appeal.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




                                           3
