(D.C. Nos. 6:13-CV-01407-EFM and 6:11-CR-10029-EFM-1) (D. Kan.)
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Paul J. Kelly, Jr. Circuit Judge
Defendant-Appellant Austin Alan Ray, a federal inmate appearing pro se, seeks a certificate of appealability (COA) to challenge the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Because Mr. Ray has not made "a substantial showing of the denial of a constitutional right, " 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss the appeal.
On August 2, 2011, Mr. Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). With a total offense level of 34 and a criminal history category of I, the Guidelines range of imprisonment was 151 to 188 months. The district court sentenced Mr. Ray to 102 months imprisonment and a seven-year term of supervised release. Mr. Ray appealed the sentence and it was affirmed on appeal. United States v. Ray, 704 F.3d 1307 (10th Cir. 2013).
Significant for our purposes here, the district court imposed seventeen special conditions of supervised release. Among other conditions, the district court (1) prohibited Mr. Ray from having unsupervised contact with minors; (2) prohibited Mr. Ray from accessing or possessing any pornographic material, including material that depicts only adults; (3) subjected Mr. Ray to periodic, unannounced and/or random examinations of his computer and other Internet-capable devices; and (4) required Mr. Ray to participate in an approved substance abuse program and refrain from using alcohol and other intoxicants during the term of the program.
Mr. Ray advanced two legal arguments in support of his § 2255 motion. First, he claimed ineffective assistance of counsel, arguing that counsel should have objected to several of the special conditions of supervised release. Second, Mr. Ray raised a facial challenge to the sentencing range associated with USSG § 2G2.2, arguing that this range violates the Eighth Amendment's prohibition against cruel and unusual punishment. The district court denied the § 2255 motion, rejecting the ineffective assistance claim for want of a showing of deficient performance and rejecting the Eighth Amendment claim as procedurally barred. United States v. Ray, No. 6:11–CR-10029–EFM, 2014 WL 1646889 (D. Kan. Apr. 23, 2014). On appeal, Mr. Ray reasserts these claims and, in addition, argues that the district court abused its discretion by (a) refusing to order a response from the government and (b) failing to conduct an evidentiary hearing.
A COA is a jurisdictional prerequisite to an appeal from the denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). For those claims the district court denied on the merits, a movant "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). For those claims denied on procedural grounds, a movant must also demonstrate that the district court's procedural ruling was likewise debatable. Id.
The failure to raise an issue at trial or on appeal imposes a procedural bar to collateral review. United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004). Despite this procedural bar, a movant can have the merits of his claim heard if he can establish that his claim fits within either one of two "well recognized exceptions." Id. First, a movant can overcome the procedural bar by showing "both good cause for failing to raise the issue earlier, and that the court's failure to consider the claim would result in actual prejudice to his defense." Id. A successful claim for ineffective assistance of counsel "constitutes cause and prejudice for purposes of surmounting the procedural bar." United States v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004). Second, a movant may also overcome the procedural bar by showing that "a fundamental miscarriage of justice would result from a failure to entertain the claim." United States v. Richards, 5 F.3d 1369, 1370 (10th Cir. 1993) (internal quotation marks omitted).
A. Ineffective Assistance of Counsel
To succeed on a claim for ineffective assistance of counsel, a movant must demonstrate (a) deficient performance and (b) prejudice. Strickland v. Washington, 466 U.S. 668, 688, 693 (1984). To establish deficient performance, a movant must show that his or her attorney's "acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. The attorney's performance must be assessed in light of "the facts of the particular case, viewed as of the time of counsel's conduct." Id. This "standard of review is highly deferential, " Kimmelman v. Morrison, 477 U.S. 365, 381 (1986), because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
To establish prejudice, a movant "must show that there is a reasonable probability that, but for his counsel's professional errors, the result of the proceeding would have been different." Id. at 694. The focus of the inquiry here is "whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding ...