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United States v. Mabry

United States Court of Appeals, Tenth Circuit

October 6, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BRUCE A. MABRY, Defendant-Appellant.

(D.C. Nos. 6:14-CV-01140-EFM, 6:11-CR-10102-EFM-1) (D. Kansas).

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

ORDER

Robert E. Bacharach, Circuit Judge.

Mr. Bruce Mabry was on parole, at home with his girlfriend, when two law enforcement officers came to the door to serve Mr. Mabry with a warrant. The officers talked with the girlfriend, then entered and found Mr. Mabry, along with a sawed-off shotgun. Tr. Mot. Suppress Hr'g at 40, 44-45, 65. The firearm was not registered, and Mr. Mabry was charged with possession of an unregistered firearm.

His attorneys unsuccessfully moved to suppress evidence of the firearm, and Mr. Mabry pleaded guilty. After an unsuccessful appeal, [1] Mr. Mabry moved to vacate the sentence under 28 U.S.C. § 2255. That motion contained allegations that

(1) officers should not have entered the girlfriend's residence because they lacked reasonable suspicion that Mr. Mabry was inside, and
(2) defense counsel was ineffective for failing to challenge the search on this ground.

The district court denied relief under § 2255. Mr. Mabry wants to appeal and, in order to do so, he asks us for a certificate of appealability. This request is denied.

We can issue a certificate of appealability only if Mr. Mabry has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2012). To satisfy this requirement, Mr. Mabry must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)), superseded by statute, Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as recognized in Slack, 529 U.S. at 483-84) (internal quotation mark omitted). Under this test, Mr. Mabry must show "that the district court's resolution of the constitutional claim was either 'debatable or wrong.'" Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (quoting Slack, 529 U.S. at 484).

We apply this standard to assess the viability of the underlying claim: ineffective assistance of counsel. On this claim, Mr. Mabry would need to show that

• his counsel's representation "fell below an objective standard of reasonableness, " and
• "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). In applying these elements, reasonable jurists could not debate the outcome.

Mr. Mabry claims that his attorney should have challenged the search on the ground that officers had lacked reasonable suspicion to believe that he was inside the residence.[2] From the existing ...


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