United States v. Barnes

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 16, 2020
• Docket: 20-5081
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT December 16, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-5081 (D.C. No. 4:20-CV-00284-CVE-FHM & JAMES WESLEY BARNES, 4:18-CR-00154-CVE-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________

James Barnes, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255

motion. We deny a COA and dismiss the appeal.

I

Barnes was indicted for sexual exploitation of a child and possession of

methamphetamine with intent to distribute. He was later charged in a new information

with possession of child pornography after coercing a minor to send him nude

photographs over Facebook messenger in exchange for money. Barnes pleaded guilty 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. the one-count information and was sentenced to 180 months imprisonment per the

parties’ stipulation. Over a year after his judgment of conviction became final, he filed a

28 U.S.C. § 2255 motion arguing that his counsel was ineffective for failing to object to

sentencing enhancements and that there was no evidence that the child pornography was

sent “using any means or facility of interstate commerce.” 18 U.S.C. § 2252(a)(4)(B).

The government moved to dismiss the motion as untimely. The district court granted the

government’s motion and denied a COA. Barnes now seeks a COA from this court.

II

A prisoner may not appeal the denial of habeas relief under § 2255 without a

COA. 28 U.S.C. § 2253(c)(1)(B). If a district court dismisses a § 2255 motion on

procedural grounds, we can only issue a COA if “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right, and []

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

We do not consider whether Barnes’ procedural claims are debatable because his

substantive claims lack merit. Barnes first argues that his counsel was ineffective

because she (1) failed to object to the district court’s alleged imposition of a sentencing

enhancement based on a prior assault conviction, and (2) failed to argue that the district

court’s sentence violated his plea agreement. To prevail on an ineffective assistance of

counsel claim, the movant must demonstrate “that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment” and that “the deficient performance prejudiced the defense.” Strickland v.

-2- Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. Barnes’ arguments that

his counsel was ineffective are contradicted by the record. The district court did not

enhance his sentence based on a prior assault conviction, nor did it violate the terms of

Barnes’ plea agreement. Rather, it imposed the 180-month sentence that the parties

stipulated to after the government agreed to dismiss more serious offenses. Barnes’

counsel did not err in failing to object to the court imposing the stipulated sentence, nor

can Barnes show that he was prejudiced by receiving the sentence to which he agreed.

Accordingly, his counsel was not ineffective.

Barnes argues that his guilty plea lacked a sufficient factual predicate to support

the interstate element of the possession of child pornography charge. He reasons that

because the illicit images he received were not sent across state lines, they were not sent

“using any means or facility of interstate commerce.” 18 U.S.C. § 2252(a)(4)(B).

Although Barnes’ arguments may have had merit under prior versions of the relevant

statute, see United States v. Schaefer, 501 F.3d 1197, 1198 (10th Cir. 2007), Congress

amended the statute in 2008 to change the jurisdictional requirement. We have held that

the version of the statute under which Barnes was convicted applies whenever the images

are sent using a means of interstate commerce, and “the internet is generally an

instrument of interstate commerce.” United States v. Baum, 542 F. App’x 724, 727 (10th

-3- Cir. 2013) (unpublished) (quotation omitted).1 Because Barnes received the images via

Facebook messenger, an instrument of interstate commerce, there was a sufficient factual

predicate to support his guilty plea.2

III

We DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge

1 We may cite an unpublished opinion for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 Barnes additionally argues for the first time on appeal that the district court was openly biased against him, and his counsel was ineffective for failing to discover the bias before advising Barnes to accept the plea agreement. These conclusory assertions are not supported by the record, nor does Barnes provide any evidence in support of them. Contrary to Barnes’ assertions, the district court did not show bias by declining a downward departure from the sentence Barnes stipulated to, nor did the judge impose a longer sentence than the parties agreed to. Because there is no evidence of judicial bias, the argument fails. -4-