                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   June 30, 2014
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 13-3276
 v.                                             (D.C. Nos. 2:12-CV-02684-CM;
                                                    2:07-CR-20057-CM-1)
 DEMARIO A. EATMAN,                                        (D. Kan.)

          Defendant-Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.


      In this 28 U.S.C. § 2255 proceeding, pro se 1 federal inmate Demario

Eatman has applied for a certificate of appealability (“COA”) to challenge the

district court’s denial of his motion to vacate, set aside, or correct his sentence.

Mr. Eatman also moves for leave to proceed here in forma pauperis (“IFP”). As


      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Eatman is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
explained below, we deny the application for a COA, deny the motion to proceed

IFP, and dismiss the matter.

                                          I

      In 2007, Mr. Eatman was indicted in the United States District Court for

the District of Kansas for possessing a firearm as a felon, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). Mr. Eatman pleaded guilty

without the benefit of a plea agreement. The petition to plead guilty was signed

by Mr. Eatman and bore the following typewritten note: “The maximum penalty is

10 years unless the court determines the defendant has three prior serious drug

offenses or violent felonies or a combination of three ther[e]of as set out in 18

U.S.C. sec. 924(e)(1).” R., Vol. I, at 21 (Pet. to Plead Guilty, filed Oct. 14,

2010). Defense counsel likewise certified to the court that he had explained the

maximum penalty for the offense to his client and had discussed with him the

application of the United States Sentencing Guidelines (“the Guidelines”). 2

      After the guilty plea was entered, a Presentence Investigation Report

(“PSR”) was prepared by the United States Probation Office using the 2010

version of the Guidelines. The PSR determined that Mr. Eatman was subject to

an advisory Guidelines range of 168 to 210 months, which became a 180-to-210-



      2
             The attorney certification suggests that the guilty plea was the result
of a plea agreement, but in light of the rest of the record we regard that statement
as a typo.

                                          2
month range in light of the fifteen-year statutory minimum sentence established

by 18 U.S.C. § 924(e)(1) for armed career criminals. According to the PSR, Mr.

Eatman was an armed career criminal because he had been convicted of three

violent felonies—viz., one for burglary and two for resisting arrest. Mr. Eatman

objected that the resisting-arrest convictions were not violent felonies and thus

could not properly be used to classify him as an armed career criminal.

      At the sentencing hearing that followed, defense counsel advised the court

that he had discussed the PSR with Mr. Eatman and had gone over with him “the

possible sentencing outcomes or sentencing consequences that could take place

based on the information in the report.” R., Vol. II, at 6 (Sentencing Hr’g Tr.,

dated Feb. 8, 2011). Mr. Eatman testified to the same effect.

      The district court adopted the PSR in toto, including its effective 180-to-

210-month range, and sentenced Mr. Eatman to 180 months in prison. In so

doing, the district court found that both of Mr. Eatman’s prior convictions for

resisting arrest qualified as violent felonies under 18 U.S.C. § 924(e), as that

provision had been interpreted by Tenth Circuit case law.

      When Mr. Eatman challenged his sentence, his attorney filed a motion to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). On appeal, Mr.

Eatman reiterated the argument that his resisting-arrest offenses were not violent

felonies within the meaning of the relevant statutory provisions. A panel of the

Tenth Circuit rejected his argument and, applying Sykes v. United States, ---

                                          3
U.S. ----, 131 S. Ct. 2267 (2011), determined that Mr. Eatman’s convictions

qualified as “violent felonies” under the Armed Career Criminal Act. United

States v. Eatman, 460 F. App’x 790, 795–96 (10th Cir. 2012). The panel

consequently granted defense counsel’s Anders motion and dismissed the appeal.

Id. at 796.

      In 2012, Mr. Eatman filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. He alleged in that motion that his plea

had not been knowing, voluntary, and intelligent, thereby violating his due-

process rights, and that he had received ineffective assistance of counsel. In

support of his claims, Mr. Eatman asserted that his attorney had exaggerated the

strength of the evidence against him and falsely advised him that he would not be

sentenced to more than 120 months’ imprisonment. After the government

responded to his request for habeas relief, Mr. Eatman filed a motion for

production of discovery material from his former attorney. He also filed a motion

to expand the record to include various affidavits and DNA evidence. In a

subsequent filing, Mr. Eatman requested an evidentiary hearing on his § 2255

motion.

      The district court denied the motion for discovery, the motion to expand the

record, and the § 2255 motion. With respect to the due-process claim, the district

court noted that both the petition to plead guilty and the district court’s

recollection of the change-of-plea hearing reflected the fact that Mr. Eatman’s

                                           4
counsel informed him that he faced a maximum penalty of ten years unless the

court found him to be an armed career criminal under 18 U.S.C. § 924(e)(1). 3

Regarding the ineffective-assistance claim, the district court stressed that defense

counsel filed a motion in limine, a motion for discovery, and objections to the

PSR, indicating that he had reviewed the evidence in the case and that his

performance was not constitutionally deficient. The district court likewise found

that Mr. Eatman had made no showing of prejudice, reasoning that the

government had compelling evidence of his guilt—including video surveillance

capturing the suspect wearing the same clothing found on Mr. Eatman at the time

of his arrest. In light of those findings, the district court denied Mr. Eatman’s

§ 2255 motion, denied a COA, denied his request for an evidentiary hearing, and

denied his motions for discovery and to expand the record.

                                         II

      We are not authorized to consider the merits of an appeal in a § 2255

proceeding unless the movant has first obtained a COA. See 28 U.S.C.

§ 2253(c)(1)(B); see also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). “A



      3
             Although no transcript for the change-of-plea hearing appears in the
record, we observe that the same district court judge who presided over that
hearing later ruled on the § 2255 motion. Thus, guided by the Supreme Court’s
view that “[i]n some cases, the judge’s recollection of the events at issue may
enable him summarily to dismiss a [§] 2255 motion,” Blackledge v. Allison, 431
U.S. 63, 74 n.4 (1977), we are not troubled by this aspect of the district court’s
ruling.

                                          5
COA will issue ‘only if the applicant has made a substantial showing of the denial

of a constitutional right.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir.

2008) (quoting 28 U.S.C. § 2253(c)(2)); accord Harris v. Dinwiddie, 642 F.3d

902, 906 (10th Cir. 2011). “To make such a showing, an applicant must

demonstrate ‘that reasonable jurists could debate whether (or, for that matter,

agree that) the [motion] should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed

further.’” Harris, 642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

                                         III

      Liberally construed, Mr. Eatman’s opening brief asserts five grounds for a

COA: (1) his plea was not knowing, intelligent, and voluntary, in violation of his

due-process rights; (2) he received ineffective assistance of counsel, in violation

of his Sixth Amendment rights; (3) his request to expand the record should have

been granted; (4) his motion for discovery should have been granted; and (5) his

request for an evidentiary hearing should have been granted. 4 For the reasons that

follow, Mr. Eatman is not entitled to a COA on the first two grounds because he

fails to demonstrate that reasonable jurists could debate the district court’s


      4
              In addition, Mr. Eatman appears to challenge the district court’s
ruling that his reply brief was not properly filed because it was not signed under
penalty of perjury. Because he does not explain what bearing this point might
have on his request for a COA, we will not discuss the argument further.

                                          6
determination that his constitutional claims are meritless. He is likewise not

entitled to a COA on the remaining three grounds, for without a viable underlying

constitutional claim, his nonconstitutional arguments cannot support the issuance

of a COA.

                                          A

      So far as we can discern, Mr. Eatman’s due-process argument on appeal is

limited to the contention that “[t]he rote recitation of the plea colloquy is

insufficient in most cases to permit a court to resolve the issue of . . . whether a

knowing[], voluntary and intelligent guilty plea has been made.” Aplt. Opening

Br. at 3. Mr. Eatman supplies no explanation or authority to support this

proposition. 5 In any event, the record belies Mr. Eatman’s suggestion that the

district court cursorily accepted his guilty plea. Rather, the district court found

that Mr. Eatman was correctly apprised of his sentencing exposure—including the

potential fifteen-year statutory minimum—through his own petition to plead

guilty and directly by the district court’s oral advisements at the change-of-plea



      5
             Mr. Eatman purports to incorporate by reference his reply brief from
the § 2255 proceedings in the district court. We will not permit him to do so. See
10th Cir. R. 28.4 (“Incorporating by reference portions of lower court or agency
briefs or pleadings is disapproved [under the Federal Rules of Appellate
Procedure].”); see also Wardell v. Duncan, 470 F.3d 954, 963–64 (10th Cir. 2006)
(holding that an appellant was not entitled to incorporate district court filings into
his appellate brief by reference and that his “pro se status d[id] not except him
from such established rules”). Consequently, we will not address the arguments
that Mr. Eatman attempts to incorporate by reference.

                                          7
hearing. Mr. Eatman does not contest these findings, so we accept them as

correct. See United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) (“In

considering the denial of a § 2255 motion for post-conviction relief, we review

the district court’s findings of fact for clear error . . . .”); Butler v. Hamilton, 542

F.2d 835, 838 (10th Cir. 1976) (“The burden of demonstrating that findings are

clearly erroneous is a heavy one and appellants must point out specifically where

the findings of the trial court are clearly erroneous.”).

      As the district court acknowledged in denying Mr. Eatman’s § 2255 motion,

there are situations in which records are too sparse to ascertain whether a

defendant’s guilty plea satisfied due process. See Blackledge, 431 U.S. at 75–76;

cf. Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996) (discussing Blackledge

and concluding that, in contrast to that case, the defendant’s “unsubstantiated

efforts to refute [the] record were not sufficient to require a hearing”). At the

same time, it is well-established that “[t]he subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are

contentions that in the face of the record are wholly incredible.” United States v.

Weeks, 653 F.3d 1188, 1205 (10th Cir. 2011) (quoting Blackledge, 431 U.S. at 74)

(internal quotation marks omitted); see Lasiter, 89 F.3d at 703 (“This court has

interpreted Blackledge to permit summary disposition of habeas corpus [motions]

based on claims of unkept promises and misunderstanding when the court record

refutes the claims.”); Phillips v. Murphy, 796 F.2d 1303, 1305 (10th Cir. 1986)

                                            8
(“In light of the detailed record and findings, . . . and the petitioner’s awareness

of statements in court that there were no negotiations on the sentence, we

conclude the assertions of petitioner are wholly incredible and do not require a

federal evidentiary hearing.”). The record here, as found by the district court and

as unchallenged by Mr. Eatman, indicates that Mr. Eatman was correctly told his

potential sentence. As a result, his intimation that he was not so advised is “in

the face of the record . . . wholly incredible,” Weeks, 653 F.3d at 1205 (internal

quotation marks omitted), and he is not entitled to a COA on his due-process

claim.

                                           B

         Mr. Eatman appears to assert that his former attorney supplied ineffective

assistance, as defined in Strickland v. Washington, 466 U.S. 668 (1984), by

falsely informing him that a DNA sample taken from the scene of the crime

matched that of Mr. Eatman. 6 “[T]o prevail on an ineffective assistance claim the



         6
              Mr. Eatman seems to also suggest that the government withheld the
fact that there actually was no inculpatory DNA evidence, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). There are no Brady-related allegations in Mr.
Eatman’s § 2255 motion, so any potential Brady issue was not fairly presented to
the district court, and we will not address the argument in the first instance here.
See Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998) (“Although we
construe pro se pleadings liberally, we will not rewrite a [motion] to include
claims that were never presented.” (citation omitted)); United States v. Cook, 997
F.2d 1312, 1316 (10th Cir. 1993) (“In the present appeal, Defendant raises thirty-
one grounds for relief. To the extent that he failed to raise these grounds in his
§ 2255 motion to the district court, he has waived them.”).

                                           9
defendant must show that [his] counsel’s performance was deficient and that

prejudice resulted.” United States v. Flood, 713 F.3d 1281, 1286 (10th Cir.)

(emphasis added), cert. denied, --- U.S. ----, 134 S. Ct. 341 (2013). “These two

prongs [i.e., deficient performance and prejudice] may be addressed in any order,

and failure to satisfy either is dispositive.” Hooks v. Workman, 689 F.3d 1148,

1186 (10th Cir. 2012); see United States v. Orange, 447 F.3d 792, 796–97 (10th

Cir. 2006) (“Because [the § 2255 movant] must demonstrate both Strickland

prongs to establish his claim, a failure to prove either one is dispositive.” (citation

omitted)).

      Mr. Eatman offers no argument or explanation concerning why he believes

he received false information from his attorney about the purported DNA

evidence. As such, he fails to demonstrate that his counsel’s performance was

deficient, and it follows that reasonable jurists could not debate the district

court’s decision to deny his ineffective-assistance claim on that basis. It is also

clear that his ineffective-assistance claim founders on Strickland’s prejudice

prong. “In cases where a defendant complains that ineffective assistance led him

to accept a plea offer as opposed to proceeding to trial, [he] will have to show ‘a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.’” Missouri v. Frye, --- U.S. ----,

132 S. Ct. 1399, 1409 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985));

accord United States v. Moya, 676 F.3d 1211, 1213–14 (10th Cir. 2012).

                                          10
      On the basis of its own recollection of the change-of-plea hearing, the

district court determined that Mr. Eatman could not establish prejudice on his

DNA-evidence argument because the government did not suggest at that hearing

that it would have presented any DNA evidence at trial. The district court also

found that the government intended to present video surveillance that showed the

suspect wearing the same attire later discovered on Mr. Eatman’s person when he

was arrested. Moreover, the district court recited the government’s assertion that

the firearm was later found close to the location at which Mr. Eatman was taken

into custody.

      Mr. Eatman does not dispute any of the foregoing findings in his opening

brief, leading us to embrace them as true. See Rushin, 642 F.3d at 1302; Butler,

542 F.2d at 838. Applying the law to these facts, we find that a reasonable jurist

could not debate the correctness of the district court’s conclusion that there was

no reasonable probability that Mr. Eatman would have elected to go to trial, rather

than plead guilty, even in the absence of the purported DNA evidence. For,

without that evidence, there would still have been—on the uncontroverted

record—substantial proof of Mr. Eatman’s guilt. Consequently, Mr. Eatman

cannot demonstrate that he was prejudiced under Strickland by any alleged

deficient performance by his counsel.

      In sum, given that Mr. Eatman has failed to make an adequate showing on

either prong of Strickland (i.e., deficient performance or prejudice), we are

                                         11
satisfied that reasonable jurists could not debate the district court’s decision to

reject his ineffective-assistance claim, and we will not issue a COA regarding that

claim.

                                           C

         Apart from his underlying constitutional claims, Mr. Eatman requests a

COA on three other grounds: (1) his request to expand the record should have

been granted; (2) his motion for discovery should have been granted; and (3) his

request for an evidentiary hearing should have been granted. However, a COA is

only appropriate in circumstances implicating constitutional error. See Harris,

642 F.3d at 906 (“We will issue a COA ‘only if the applicant has made a

substantial showing of the denial of a constitutional right.’” (emphasis added)

(quoting 28 U.S.C. § 2253(c)(2))); Coppage, 534 F.3d at 1281 (“A COA will

issue ‘only if the applicant has made a substantial showing of the denial of a

constitutional right.’” (emphasis added) (quoting 28 U.S.C. § 2253(c)(2))); United

States v. Gordon, 172 F.3d 753, 755 (10th Cir. 1999) (“[Section] 2253(c)(2)

precludes the grant of a COA on such nonconstitutional claims.”). Mr. Eatman

does not suggest that any of these alleged errors rise to constitutional magnitude,

and we see no way in which they could. Furthermore, to the extent that the

remaining claims are meant to go to his underlying constitutional arguments, we

have already explained why those arguments fail to warrant a COA. Accordingly,

Mr. Eatman is not entitled to a COA on these claims.

                                          12
                                      IV

      Mr. Eatman has presented here no “reasoned, nonfrivolous argument on the

law and facts.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (internal

quotation marks omitted). Accordingly, his motion to proceed IFP is denied.

                                       V

      For the reasons set forth above, we DENY Mr. Eatman’s application for a

COA, DENY his motion to proceed IFP, and DISMISS this matter.




                                            Entered for the Court



                                            JEROME A. HOLMES
                                            Circuit Judge




                                       13
