                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    May 11, 2012
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 11-8089
 v.                                          (D.C. Nos. 2:10-CV-00037-ABJ and
                                                   2:08-CR-00015-ABJ-1)
 CASEY BALLIEU,                                          (D. of Wyo.)

              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Casey Ballieu is a federal prisoner currently serving a fifteen-year sentence

on child pornography charges. He seeks a certificate of appealability (COA) to

challenge the district court’s denial of his 28 U.S.C. § 2255 petition for a writ of

habeas corpus. The district court dismissed Ballieu’s petition, concluding that his




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
representation at trial was not constitutionally deficient and that he failed to

support his other claims that various constitutional rights were violated.

      On appeal, Ballieu raises a new argument, claiming his trial counsel was

deficient for failing to raise the issue that Ballieu was incompetent when he

committed his offense and at trial. We find Ballieu fails to support his claims and

DENY his request for a COA.

                                 I. Background

      In November 2007, Ballieu, who was then employed in Colorado,

inadvertently sent a text message containing an image of child pornography to his

estranged wife, who resided in Wyoming. His wife contacted the police, and

Ballieu was subsequently arrested and charged with the distribution of child

pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). 1 A jury convicted him

and he was sentenced to 180 months in prison and 20 years of supervised release.

      Ballieu filed an unsuccessful direct appeal with this court. United States v.

Ballieu, 348 F. App’x 335 (10th Cir. 2009). He then filed a timely pro se § 2255

motion, arguing his counsel was ineffective because he failed to adequately cross-

examine certain witnesses, failed to negotiate a plea agreement allowing Ballieu

to plead nolo contendere, and made several other errors that cumulatively

amounted to constitutionally ineffective assistance. The district court dismissed


      1
       Ballieu also received an enhanced minimum sentence under 18 U.S.C.
§ 2252A(b)(1) because of a prior conviction.

                                         -2-
Ballieu’s petition, denied a COA, and denied Ballieu’s motion to proceed in

forma pauperis.

                                  II. Discussion

      To obtain a COA, a petitioner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies

this standard by demonstrating 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 quotations omitted).

      Ballieu did not file a proper appellate brief, but instead asserted his claims

and accompanying legal arguments in a short letter to the court, which also

requested that we construe his notice of appeal as a request for a COA. Because

Ballieu is a pro se litigant, we construe his pleadings and other filings liberally.

Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). We thus

construe his notice of appeal as a request for a COA, and his letter to the court as

his opening brief.

      On appeal, Ballieu raises an entirely new argument, claiming that his trial

counsel was ineffective because he failed to raise the issue of Ballieu’s

competency to stand trial or to assert an insanity or diminished capacity defense.

He also claims that he is not competent to represent himself now. We construe

the latter as a claim the district court erred by failing to appoint counsel to

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represent him on his habeas petition. We also construe it to request that we

appoint counsel to represent him.

      A. Ineffective Assistance of Counsel

      To prevail on an ineffective assistance of counsel claim, Ballieu must

demonstrate that his counsel’s performance “fell below an objective standard of

reasonableness” and “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). There is a strong

presumption that counsel’s performance was adequate and reflected the exercise

of reasonable professional judgment. Id. at 690. To be constitutionally deficient,

counsel’s conduct must be outside the “wide range of professionally competent

assistance.” Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010). “In other

words, it must [be] completely unreasonable, not merely wrong.” Id.

      Ballieu did not argue before the district court that his counsel was

ineffective for failing to raise the issue of his competency or assert an insanity or

diminished capacity defense. Normally we do not consider arguments not raised

before the district court in the absence of unusual circumstances. United States v.

Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005). Ballieu’s alleged incompetence

could present such a circumstance, but we do not find any support for his

assertion. Ballieu points to no evidence in the record establishing that he was or

is incompetent. Our independent review of the record reveals only that his trial

attorney moved for a competency hearing and that the district court granted this

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request. The outcome of the hearing is not in the record before this court, but

Ballieu did proceed to trial.

      That his attorney requested a competency hearing is not evidence that

Ballieu actually was incompetent to stand trial. It does undermine the merits of

the first ineffective assistance claim he raises on appeal, that his counsel should

have presented evidence he was incompetent to stand trial, by showing that

Ballieu’s attorney raised the issue of his client’s competency before the trial

court. We fail to see how this falls below an objective standard of

reasonableness, or what more Ballieu’s counsel should have done.

      Ballieu’s second ineffective assistance argument is that his counsel did not

assert an insanity or diminished capacity defense. Ballieu is incorrect that

diminished capacity is a defense to a charge under 18 U.S.C. § 2252A(a)(2)(A).

This is a crime of general intent, as the statute criminalizes the “knowing”

reception or distribution of child pornography in interstate commerce. United

States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (observing that Congress’s use

of the term “knowingly” indicates a general intent offense). But diminished

capacity is a defense only to crimes of specific intent, which require not only a

voluntary act but also the specific intent to do something the law forbids. See

United States v. Jackson, 248 F.3d 1028, 1029–30 (10th Cir. 2001).

      Insanity, on the other hand, can be a defense to a general intent crime. See

United States v. Allen, 449 F.3d 1121, 1125 (10th Cir. 2006). But there is no

                                         -5-
evidence in the record supporting the proposition that Ballieu is insane, nor does

he cite any facts or make any arguments in support of this claim. We will

construe Ballieu’s petition liberally, but we will not make his arguments for him.

United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

      Again, the only evidence in the record that goes to whether Ballieu is or

was incompetent is the fact that his attorney requested a competency hearing prior

to trial. This does not demonstrate that Ballieu was incompetent or insane, let

alone that his attorney was objectively unreasonable in failing to assert this

defense, or that his attorney’s failure to raise the defense was constitutionally

prejudicial.

      Ballieu’s second argument thus satisfies neither prong of Strickland.

Accordingly, we do not find that reasonable jurists could debate whether Ballieu

should be encouraged to pursue his ineffective assistance claims on appeal.

      B. Failure to Appoint Appellate Counsel

      Ballieu’s second claim is that he is not competent to represent himself in

the current proceedings. In support of his claim, he cites to Indiana v. Edwards,

554 U.S. 164 (2008), where the Supreme Court held that states may require

representation for defendants who are competent to stand trial but not competent

to represent themselves. He also asserts he had a paralegal assist him with the

preparation of his § 2255 petition, that this paralegal lost his application for a




                                          -6-
COA or somehow cheated him, and that the government supported this alleged

scam to avert his collateral attack on his sentence.

      Construing Ballieu’s petition liberally, we interpret his claim regarding his

incompetency to represent himself now as an argument that the district court erred

by failing to appoint counsel to represent him on his § 2255 petition and a request

that we appoint him counsel. It is unclear what he means by his assertions

regarding the paralegal. Ballieu’s § 2255 petition and brief below are well-

written and cogent. We interpret his argument to explain that he had legal

assistance when filing his pleadings below, and thus was able to competently

represent himself, but cannot do so now because he has lost this assistance. 2

      Ballieu’s claim that the district court erred by failing to appoint counsel is

without merit. Defendants do not have a constitutional right to counsel when

bringing a collateral attack on a conviction. Pennsylvania v. Finley, 481 U.S.

551, 555 (1987). Neither Ballieu’s § 2255 petition nor his brief in support of that

petition requested the district court appoint him counsel. Nor did Ballieu raise

the issue of his alleged incompetency before the district court, depriving it of any

notice that the appointment of counsel might be warranted. Based on these facts,

we conclude the district court did not err by failing to appoint Ballieu counsel.


      2
        As for his assertion that his paralegal’s desertion is a scam that the
government somehow participated in or supports, his allegation is wholly
conclusory. Again, we will not make Ballieu’s arguments for him when he
provides no support for his claims. Fisher, 38 F.3d at 1147.

                                         -7-
         As for Ballieu’s request that we appoint him counsel, we decline to do so.

Ballieu is not constitutionally entitled to the assistance of counsel in this appeal.

He was able to submit a § 2255 petition and supporting brief to the district court,

and we have been able to consider his claims on appeal.

         C. In Forma Pauperis

         The district court denied Ballieu’s two motions to proceed in forma

pauperis on appeal. The court found that although Ballieu was able to

demonstrate his inability to pay the required filing fees, he could not demonstrate

the existence of a reasoned, nonfrivolous argument supporting the issues he

intended to raise on appeal. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th

Cir. 1991). Ballieu then filed a separate in forma pauperis motion with this

court.

         Under 28 U.S.C. § 1915(a)(3), a petitioner may not appeal in forma

pauperis if the trial court certifies in writing that the appeal is not taken in good

faith. An appeal is taken in good faith when it presents a nonfrivolous issue.

Coppedge v. United States, 369 U.S. 438, 445 (1962). The district court denied

Ballieu’s in forma pauperis motions on the grounds that they were frivolous,

indicating they were not taken in good faith. Nonetheless, we may consider

Ballieu’s new in forma pauperis motion under Federal Rule of Appellate

Procedure 24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079

(10th Cir. 2007).

                                           -8-
      Upon consideration, we deny Ballieu’s in forma pauperis motion. His

arguments in support of his claims are conclusory, supported neither by

meaningful legal authority nor citations to any record evidence. He failed to raise

before the district court any of the grounds he asserts on appeal, and addresses

none of the points the district court made in dismissing his § 2255 petition. We

conclude Ballieu’s appeal is frivolous and DENY his motion to proceed in forma

pauperis.

                                III. Conclusion

      For the reasons stated above, we DENY Ballieu’s request for a COA and

DISMISS his appeal. We also DENY his request to proceed in forma pauperis.

                                                    Entered for the Court,

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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