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

                            FOR THE TENTH CIRCUIT                       December 3, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff–Appellee,

v.                                                          No. 13-8058
                                                 (D.C. Nos. 2:11-CV-00303-CAB &
NATHANIEL SOLON,                                      2:07-CR-00032-CAB-1)
                                                             (D. Wyo.)
             Defendant–Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.


      Nathaniel Solon, appearing pro se, seeks a certificate of appealability (“COA”)

to appeal the district court’s order denying his motion to vacate, set aside, or correct

his sentence under 28 U.S.C. § 2255. We deny a COA and dismiss the appeal.

                                            I

      A jury convicted Solon of possession of child pornography in violation of

18 U.S.C. § 2252A(a)(5)(B) and (b)(2) and attempted receipt of child pornography in

violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). He was sentenced to


*
       This order is not binding precedent except under the doctrines of law of the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.
seventy-two months’ imprisonment and five years of supervised release. On direct

appeal, this court affirmed Solon’s conviction. See United States v. Solon, 596 F.3d

1206 (10th Cir. 2010). The district court denied Solon’s post-conviction motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Solon now

seeks a COA to challenge that denial.1

                                           II

      Solon argues that his appellate counsel provided ineffective assistance on

direct appeal because she failed to assert claims based on: (1) insufficiency of the

evidence; (2) the government’s failure to seize his entire computer system instead of

only the hard drive; and (3) bias that permeated his jury trial and the other judicial

proceedings in the district court. To obtain a COA to pursue these claims, Solon

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 jurists of

reason could disagree with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

      “The proper standard for assessing a claim of ineffectiveness of appellate

counsel is that set forth in Strickland v. Washington, 466 U.S. 668 . . . (1984).”


1
  In his opening brief, Solon states that he was released from federal prison in
January 2013 and is currently on supervised release. Because he is subject to the
restraints of supervised release, Solon remains “in custody” for purposes of 28 U.S.C.
§ 2255(a). See United States v. Cervini, 379 F.3d 987, 989 n.1 (10th Cir. 2004).


                                          -2-
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). “[T]he petitioner must show

both (1) constitutionally deficient performance, by demonstrating that his appellate

counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by

demonstrating a reasonable probability that, but for counsel’s unprofessional error(s),

the result of the [appeal] . . . would have been different.” Id. As the Supreme Court

explained in Strickland, however, it is not necessary “to address both components of

the [ineffectiveness] inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697.

                                           A

      Solon has failed to show that he was prejudiced by his appellate counsel’s

failure to assert an insufficient evidence claim. In Solon’s direct appeal, both

opinions commented upon the strength of the government’s case against Solon. See

Solon, 596 F.3d at 1213 (“[T]he government’s case was strong.”); id. at 1216

(Lucero, J., concurring in part and dissenting in part) (“There is no denying that the

government’s case was strong.”). The majority, moreover, concluded that Solon did

not establish “a reasonable probability that . . . the jury would not have convicted

him” but for an error that is not presently at issue. Id. at 1213. Solon has not

overcome the strength of the government’s case to demonstrate a reasonable

probability that, had his counsel argued there was insufficient evidence to prove his

guilt, the result of his appeal would have been different.




                                          -3-
                                            B

      Solon also claims that his appellate counsel was ineffective because she failed

to challenge the fact that the government seized only the hard drive from his home

computer instead of the entire computer system. Solon essentially contends that the

government’s failure to seize the entire computer system resulted in the loss of

evidence that was potentially exculpatory and therefore violated his due process

rights as articulated by the Supreme Court in California v. Trombetta, 467 U.S. 479

(1984) and Arizona v. Youngblood, 488 U.S. 51 (1988).

      However, Solon has not established a reasonable probability that he would

have succeeded on a due process claim under Trombetta or Youngblood if his

appellate counsel had asserted such a claim on direct appeal. Solon’s trial counsel

filed a motion to dismiss the charges against him based on a similar theory. The

district court denied the motion, concluding that Solon had “fail[ed] to point to any

evidence that the government destroyed.” Moreover, during the hearing before the

district court, Solon’s trial counsel “admitted that he could not actually state that

there had been any destruction of evidence.” Solon also fails to point to any specific

components of his computer system that the government destroyed or lost, or to

allege that he was wrongfully denied access to any of the computer components

necessary for examinations or testing. Nor does he allege any deficiencies or

problems with regard to the protocol that the district court set up for obtaining access




                                           -4-
to the computer components. Thus, Solon fails to establish prejudice as a result of

the alleged ineffective assistance.

                                            C

       Finally, Solon claims that his appellate counsel was ineffective because she

failed to argue that his trial and the other judicial proceedings before the district court

were permeated with bias. He alleges that this bias violated his constitutional rights

to due process, an impartial jury, and a fair trial. Solon is apparently complaining

that the district judge was biased against him because the judge believed that

anything on Solon’s computer must have been put there by Solon. He also complains

that the court expressed disbelief as to his theory that files could be placed on a

computer remotely, without the owner’s knowledge. Although Solon has pointed to

doubts by the district court judge about the validity of his defense theories in certain

pretrial proceedings, he has not pointed to any such statements by the judge during

his jury trial. Moreover, Solon abandoned any claims related to the district judge’s

absence from the courtroom during closing arguments or the judge’s treatment of his

expert witness. See Solon, 596 F.3d at 1211-13 (describing and ruling upon the

relevant events). Accordingly, Solon has not established prejudice.

                                            III

       Because Solon has not satisfied the Strickland standard on any of the grounds

he raises, reasonable jurists would not disagree with the district court’s resolution of




                                           -5-
his claims. See Miller-El, 537 U.S. at 327. We therefore DENY a COA and

DISMISS the appeal.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




                                     -6-
