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

                            FOR THE TENTH CIRCUIT                            May 6, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 18-6182
                                                  (D.C. Nos. 5:17-CV-00207-M &
 DONOVAN GENE MERCER,                                  5:14-CR-00280-M-1)
                                                           (W.D. Okla.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
                 _________________________________

      Donovan Gene Mercer was convicted of three counts of accessing or

attempting to access a computer disk that contains child pornography, in violation of

18 U.S.C. § 2252A(a)(5)(B) and (b)(2). After losing a direct appeal, he filed a

28 U.S.C. § 2255 motion, which the district court denied. He now requests a

certificate of appealability (COA) to challenge that denial. As to certain claims, we




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
grant a COA, vacate the judgment, and remand for an evidentiary hearing. We deny

a COA on the remaining claims.

                                 I. BACKGROUND

      Among other claims, Mr. Mercer’s § 2255 motion asserted that (1) the

prosecution submitted false evidence in Government Exhibit 401 (GE 401), a

summary exhibit listing the dates and times of downloads of files containing child

pornography onto Mr. Mercer’s computer, and (2) his trial counsel acted ineffectively

in failing to show him discovery from the government and in failing to pursue an

alibi defense. These claims stem from Mr. Mercer’s contention that GE 401

incorrectly identified the times of the downloads.

      The program used to download the files onto Mr. Mercer’s computer is called

Ares. In pretrial discovery, the government produced to defense counsel multiple

Ares logs, including a log known as the Ares Shareh.dat Report (the Ares Report). In

his § 2255 motion, Mr. Mercer claimed that the times of the downloads listed in GE

401 were advanced by 5 to 6 hours from the times listed in the Ares Report. He

alleged that, at the times listed in the Ares Report, he was at work or at appointments

rather than at home, so he could not have been at home downloading the files. He

further claimed he could have been home 5 to 6 hours later at the times identified in

GE 401.

      For example, the thirteenth entry on the tenth page of the Ares Report states

that a file with the name “(XL hits) - 3 yr 5 yr venezolanas” was shared on Monday,

July 9, 2012 at 12:09 CDT. Request for COA, Exh. B at 10. Entry Number 3 in

                                           2
GE 401 states that Mr. Mercer downloaded a file with the same name between 5:09

and 5:14 p.m. CDT on July 9, 2012. Id., Exh. A at 1. Thus, the Ares Report reflects

activity around noon, when Mr. Mercer claims to have been at work, while GE 401

reflects activity after work 5 hours later. Given these discrepancies, Mr. Mercer’s

§ 2255 motion challenged the accuracy of GE 401 and asserted that his counsel was

ineffective in failing to show him the discovery and in failing to pursue an alibi

defense.

      In the district court, the government responded that the Ares Report is “just

one of several computer forensic logs that the government provided in discovery.”

R., Vol. II at 283. It asserted that the report does not show downloads, which were

the subject of GE 401, but instead “shows when previously downloaded files were

shared via the Ares peer-to-peer file sharing software. This document, the

government said, “is irrelevant to GE 401, which discusses when child pornography

was downloaded—not shared.” Id. at 283-84. “Indeed, when Mercer, in his § 2255

motion, compares the download times in GE 401 with the share times in [the Ares

Report,] he is comparing apples to oranges.” Id. at 284. The government further

noted that it had explained the 5-6 hour differential between the Ares reports and GE

401, citing a December 8, 2014 e-mail in which the prosecutor told the defense that

“‘[t]o get the correct local time [for the Ares Report], add 5 hours to the time listed.’”

Id. at 284 n.3 (internal quotation marks omitted).

      The government also pointed out that the defense had the Ares Report

available during trial, “but did not use it as a basis to object to the admission of GE

                                            3
401, or to cross-examine the FBI computer forensic expert, or to adduce supposedly

exculpatory information when Mercer’s wife testified as an alibi witness.” Id. at 284.

It argued that because the Ares Report “does nothing to undermine GE 401,” counsel

did not perform deficiently, and Mr. Mercer did not suffer prejudice. Id. at 291-92.

      The district court held that the challenge to the accuracy of GE 401 was

procedurally defaulted for failure to raise the issue on direct appeal. With regard to

ineffective assistance of counsel it held that

      counsel was not deficient in failing to challenge GE 401 based on the
      Ares shareh.dat log. . . . [T]he Ares shareh.dat log represents when
      previously downloaded files were shared via the Ares peer-to-peer file
      sharing software. GE 401 represents when child pornography was
      downloaded, not when it was shared. Thus, the Ares shareh.dat log is
      not relevant to GE 401.

Id. at 325. The court further held that “Mercer has not shown that he suffered any

prejudice from any of the remaining allegations of ineffectiveness, including his

counsel’s alleged failure to show him all of the discovery.” Id. at 326.

                                   II. DISCUSSION

                                 A. Legal Background

      To appeal, Mr. Mercer must obtain a COA under 28 U.S.C. § 2253(c)(1)(B),

which requires him to make “a substantial showing of the denial of a constitutional

right,” id. § 2253(c)(2). “[A] COA is an issue-by-issue jurisdictional prerequisite to

a merits determination on appeal.” United States v. Magallanes, 301 F.3d 1267, 1269

(10th Cir. 2002). “Under the controlling standard, a petition must show that

reasonable jurists could debate whether (or for that matter, agree that) the petition


                                            4
should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 336 (2003) (brackets and internal quotation marks omitted).

      When the district court has rejected a claim on the merits, the prisoner “must

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). And when the district court has rejected a claim on procedural grounds

without reaching the merits, the prisoner must “show[], at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “[A] COA does not require a

showing that the appeal will succeed. . . . It is consistent with § 2253 that a COA

will issue in some instances where there is no certainty of ultimate relief.” Miller-El,

537 U.S. at 337.

       “[I]t is established that a conviction obtained through use of false evidence,

known to be such by representatives of the State, must fall under the Fourteenth

Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). Mr. Mercer has a

constitutional right to the effective assistance of counsel. Strickland v. Washington,

466 U.S. 668, 684, 686 (1984). The district court is required to hold an evidentiary

hearing “[u]nless the motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).



                                            5
                                      B. Analysis

1. Claims Warranting a Grant of COA

      Mr. Mercer’s Request for a Certificate of Appealability and the record raise

questions about the government’s district-court arguments regarding GE 401. First,

the Ares Report reports times as “CDT” and “CST,” presumably standing for Central

Daylight Time and Central Standard Time. But if the Ares Report already used

Central time, why did the prosecutor advise the defense counsel to add 5 hours to the

report time to get the correct local time in Oklahoma? Second, assuming the Ares

Report uses Central time, if GE 401 lists download times and the Ares Report lists

times that “previously downloaded files were shared,” as the government asserted,

R., Vol. II at 283 (first emphasis added), then why do the times set forth in the Ares

Report appear to precede the times listed in GE 401? Using the example above, it is

not apparent how Mr. Mercer’s computer could have shared a file at 12:09 CDT on

July 9, 2012, as reflected in the Ares Report, if that file was downloaded 5 hours later

at 5:09 p.m. that same day, as reflected in GE 401.

      To aid in considering whether to grant a COA, this court directed the

government to file a memorandum brief addressing these questions. The government

responded, “[U]nfortunately, the record is insufficient to answer the questions posed

by the Court.” Gov’t Memo. Br. at 2. “After reviewing the pleadings and upon

further reflection, the United States submits that reasonable jurists could debate that

the district court should not have denied Mercer’s motion without an evidentiary

hearing.” Id. at 9. The government thus states that “this Court should issue a

                                           6
certificate of appealability, vacate the order denying Mercer’s motion under

28 U.S.C. § 2255, and remand for an evidentiary hearing on this discrete issue [the

Ares Report].” Id. at 2.

      In light of the inconsistencies discussed above and the government’s

concession that the record does not explain them, we conclude the district court erred

in denying Mr. Mercer’s claims regarding GE 401 without holding an evidentiary

hearing. We therefore grant a COA on his two GE 401 claims.

2. Claims Not Warranting a Grant of COA

      We have carefully reviewed Mr. Mercer’s other claims that (1) counsel was

ineffective in failing to challenge the indictment and in failing to raise a statutory

defense, (2) the district court erred in failing to evaluate Fed. R. Evid. 414 evidence

under Fed. R. Evid. 401, 402, and 404(b) before admission, and (3) the district court

erred in sentencing him. We conclude that reasonable jurists would not debate the

district court’s denial of relief and therefore deny a COA on those claims.

      a. Ineffective assistance of counsel claims

      An ineffective assistance of counsel claim requires a defendant to show

counsel’s performance was deficient and the deficient performance resulted in

prejudice. Strickland, 466 U.S. at 687. Mr. Mercer alleged in his § 2255 motion that

counsel was ineffective for failing to challenge the indictment based on the specific

language of § 2252A(a)(5)(B). Pointing to the statute’s use of the term “contains,”

not “contained,” Mr. Mercer asserts that it “only punishes for . . . accessing materials

that have actual images of child pornography found on them, not computer generated

                                            7
logs saying that such had happened.” COA Appl. at 7. The district court held that

counsel had not performed deficiently in failing to challenge the indictment.

      Mr. Mercer is mistaken in believing § 2252A(a)(5) does not extend to cases in

which a computer disk does not contain images of child pornography when it was

seized by the government. In the absence of an applicable affirmative defense, a

person violates § 2252A(a) when he accesses or attempts to access a computer disk

with intent to view an image of child pornography that the disk contains at that time

of access or attempted access. The violation is then complete irrespective of a later

deletion of the image. See United States v. Brune, 767 F.3d 1009, 1019-20 & n.6

(10th Cir. 2014) (stating that “[s]ection 2252A(a)(5)(B) punishes the (1) knowing

possession of, or accessing with the intent to view, (2) any print material, film, or

computer media, (3) containing an image of child pornography” that traveled in

interstate or foreign commerce); see also United States v. Tagg, 886 F.3d 579, 587

(6th Cir. 2018) (“The access-with-intent offense is complete the moment that the

elements of access and intent coincide.”). No reasonable jurist would debate the

district court’s conclusion that counsel did not perform deficiently by failing to

challenge the indictment on this ground.

      Mr. Mercer also asserted in his § 2255 motion that counsel was ineffective in

failing to raise the affirmative defense set forth in 18 U.S.C. § 2252A(d). That

defense is applicable when a defendant

      (1) possessed less than three images of child pornography; and



                                            8
      (2) promptly and in good faith, and without retaining or allowing any
      person, other than a law enforcement agency, to access any image or
      copy thereof--
             (A) took reasonable steps to destroy each such image; or
             (B) reported the matter to a law enforcement agency and afforded
             that agency access to each such image.

The district court did not explicitly address this claim, but it disposed of various

ineffective-assistance allegations by holding that Mr. Mercer did not suffer prejudice.

      It is unclear whether Mr. Mercer challenges the denial of this ineffective-

assistance claim on appeal, as he only briefly mentions the affirmative defense.

When he does mention it, he describes subsections (1) and (2) using “and/or.”

See COA Appl. at 7; Supp. COA Appl. at 5. He apparently believes he could have

availed himself of the defense because the files had been deleted from the hard drives

and SD card, as required by § 2252A(d)(2)(A). But the statute says “and,” not

“and/or.” Accordingly, subsections (1) and (2) must both be satisfied for a defendant

to benefit from the affirmative defense, and Mr. Mercer cannot show that he

“possessed less than three images of child pornography,” § 2252A(d)(1). To the

contrary, the district court noted that more than three thousand images of

pornography had been admitted into evidence. Because Mr. Mercer could not satisfy

the requirements of the affirmative defense, no reasonable jurist would debate

whether he was prejudiced by counsel’s failure to invoke the defense.

      b. Evidentiary claims

      Mr. Mercer claims the district court should have evaluated certain evidence

admitted under Fed. R. Evid. 414 for admissibility, relevance, and probative value
                                            9
under Fed. R. Evid. 401, 402, and 404(b). The district court held this claim was

barred from consideration in a § 2255 motion because it either was or should have

been raised on direct appeal.

      “[U]nder the law-of-the-case doctrine, courts ordinarily . . . refuse to

reconsider arguments presented in a § 2255 motion that were raised and adjudicated

on direct appeal.” Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013)

(collecting cases). Further, “[§] 2255 is not available to test the legality of matters

which should have been raised on appeal.” United States v. Allen, 16 F.3d 377, 378

(10th Cir. 1994) (internal quotation marks omitted). Accordingly, “[a] defendant

who fails to present an issue on direct appeal is barred from raising the issue in a

§ 2255 motion, unless he can show cause for his procedural default and actual

prejudice resulting from the alleged errors, or can show that a fundamental

miscarriage of justice will occur if his claim is not addressed.” Id. Mr. Mercer is

mistaken in arguing in his brief that § 2255(a), (b), and (f) negate these basic

principles and entitle him to proceed with claims that were or should have been

raised on direct appeal.

      Mr. Mercer’s direct appeal involved only one issue—“[w]hether the district

court abused its discretion in concluding, in this child pornography case, that the

probative value of evidence that Mr. Mercer had molested three children substantially

outweighed the risk of unfair prejudice.” United States v. Mercer, 653 F. App’x 622,

624 (10th Cir. 2016) (internal quotation marks omitted). He argues this issue did not

encompass his current assertions that the district court should have decided the

                                           10
evidence was admissible, relevant, and had probative value. Even if he is correct that

these are new assertions, however, they could have been raised on direct appeal and

are barred unless he shows cause and prejudice or a fundamental miscarriage of

justice. See Allen, 16 F.3d at 378. But beyond arguing that the structure of § 2255

entitles him to proceed, his application for a COA does not address the district

court’s determination that he did not establish either exception to overcome the

procedural bar. He therefore has failed to show that reasonable jurists would debate

the district court’s ruling.

       c. Sentencing error claim

       Mr. Mercer also complains that the district court found facts not found by the

jury and sentenced him based on possession of child pornography when he had not

been convicted of possession of child pornography. The district court held this claim

should have been raised on direct appeal, and Mr. Mercer had failed to show that his

procedural default could be excused by cause and prejudice or a fundamental

miscarriage of justice. Except for citing § 2255(a), Mr. Mercer’s application for a

COA does not address the determination that he failed to overcome his procedural

default. He therefore has failed to show that reasonable jurists would debate the

district court’s ruling.

                                 III. CONCLUSION

       We grant a COA and vacate the portions of the district court’s judgment

denying (1) the claim challenging the accuracy of GE 401, and (2) the claims of

ineffective assistance of counsel related to GE 401 (failing to show Mr. Mercer the

                                          11
discovery and failing to pursue an alibi defense). We remand for the district court to

conduct an evidentiary hearing regarding these claims and enter a new judgment. We

deny a COA on Mr. Mercer’s remaining claims.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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