FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1027 (D.C. Nos. 1:18-CV-00703-RBJ & MICHAEL ALVARES FYKES, 1:15-CR-00221-RBJ-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY ∗ _________________________________
Before HARTZ, HOLMES, and MORITZ, Circuit Judges. _________________________________
Michael Alvares Fykes, a pro se federal prisoner, seeks a certificate of
appealability (COA) to challenge a district court order that denied his motion to vacate
his felon-in-possession-of-a-firearm sentence. We deny a COA and dismiss this matter.
We also deny Fykes’ motion to proceed in forma pauperis (IFP).
BACKGROUND
In February 2015, police in Colorado arrested two men in a car—Fykes, who had
prior felony convictions, and Ron Trueblood—on suspicion of human trafficking. While
searching the car, police found a backpack that contained a loaded revolver, Fykes’
∗ This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. passport, a laptop computer containing one of Fykes’ medical documents, a cell phone
charger that fit Fykes’ cell phones, and miniature cigars similar to those found in the car
near Fykes.
Fykes admitted he owned the backpack, but he denied ownership of the handgun.
He suggested that Trueblood may have placed the gun in the backpack when he borrowed
the pack from Fykes.
In May 2015, a federal grand jury indicted Fykes on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Colorado trafficking and
gun charges were dismissed the following month. At some point before Fykes went to
trial on the federal gun charge, Trueblood left Colorado and did not return.
In August 2015, following a three-day trial, a jury convicted Fykes as charged.
The district court sentenced him to 60 months’ imprisonment and 3 years’ supervised
release. This court affirmed. See United States v. Fykes, 678 F. App’x 677 (10th Cir.
2017).
In 2018, Fykes moved pro se under 28 U.S.C. § 2255 to vacate his sentence due to
ineffective assistance of trial counsel and cumulative error. The district court denied the
motion and declined to issue a COA.
DISCUSSION I. Standards of Review
A COA is a jurisdictional prerequisite to our review of the denial of § 2255 relief.
See United States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013). To obtain a COA,
Fykes must make “a substantial showing of the denial of a constitutional right.”
2 28 U.S.C. § 2253(c)(2). This requires Fykes to “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). Because Fykes appears pro se,
we liberally construe his filings, but we do not act as his advocate. See Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
II. Ineffective Assistance of Trial Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that his counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Fykes advances the
following three ineffective-assistance claims.
A. Hearsay
First, Fykes claims that defense counsel was ineffective by not objecting on the
ground of hearsay when Detective Jason Blanscet testified that during Trueblood’s
interrogation, Trueblood said the gun belonged to Fykes. The district court did not
address this claim, however, as Fykes did not present it in his § 2255 motion. It is
axiomatic that a district court cannot be debatably wrong on issues that were not fairly
presented to or decided by it. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.
2012) (denying a COA on issues that were first raised in an appellate reply brief and not
presented to the district court); see also Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13
(10th Cir. 2013) (“We do not generally consider issues that were not raised before the
district court as part of the habeas petition.”).
3 B. Witnesses
Second, Fykes claims that his counsel was ineffective by not calling as witnesses
Trueblood and attorney Phillip Dubois, who represented Fykes in his Colorado criminal
proceedings. Dubois executed an affidavit in support of Fykes’ § 2255 motion stating he
overheard Trueblood in March 2015 admit that the gun was his.
The district court concluded that Fykes’ trial counsel did not perform deficiently
as to either Trueblood or Dubois. Regarding defense counsel’s decision to not call
Trueblood as a witness, the district court noted that roughly two months before trial, a
defense investigator successfully reached Trueblood by phone. Trueblood was reluctant
to speak with the investigator, but Trueblood indicated he was homeless and “moving
from location to location in Minnesota.” R., Vol. III at 51. Also, he denied ever
borrowing a backpack from Fykes and adamantly stated that the gun was not his and that
he knew nothing about it.
Based on these facts, the district court determined that defense counsel made an
objectively reasonable strategic decision to not call Trueblood as a witness. See United
States v. Holloway, 939 F.3d 1088, 1103 (10th Cir. 2019) (“To be constitutionally
deficient, counsel’s performance must have been completely unreasonable, not merely
wrong, so that it bears no relationship to a possible defense strategy.” (internal quotation
marks omitted)). We agree. Trueblood’s statements would have been very damaging to
Fykes’ defense, as they directly refuted Fykes’ theory about how a gun supposedly
belonging to Trueblood got into Fykes’ backpack.
4 Granted, during the phone call with the investigator, Trueblood denied telling
Detective Blanscet that the gun “must be[long]” to Fykes. R., Vol. III at 53 (internal
quotation marks omitted). But that denial would not have measurably assisted Fykes,
given that Trueblood asserted the gun was not his, thereby suggesting by the process of
elimination that it “must be[long]” to Fykes. We conclude that reasonable jurists could
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1027 (D.C. Nos. 1:18-CV-00703-RBJ & MICHAEL ALVARES FYKES, 1:15-CR-00221-RBJ-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY ∗ _________________________________
Before HARTZ, HOLMES, and MORITZ, Circuit Judges. _________________________________
Michael Alvares Fykes, a pro se federal prisoner, seeks a certificate of
appealability (COA) to challenge a district court order that denied his motion to vacate
his felon-in-possession-of-a-firearm sentence. We deny a COA and dismiss this matter.
We also deny Fykes’ motion to proceed in forma pauperis (IFP).
BACKGROUND
In February 2015, police in Colorado arrested two men in a car—Fykes, who had
prior felony convictions, and Ron Trueblood—on suspicion of human trafficking. While
searching the car, police found a backpack that contained a loaded revolver, Fykes’
∗ 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. passport, a laptop computer containing one of Fykes’ medical documents, a cell phone
charger that fit Fykes’ cell phones, and miniature cigars similar to those found in the car
near Fykes.
Fykes admitted he owned the backpack, but he denied ownership of the handgun.
He suggested that Trueblood may have placed the gun in the backpack when he borrowed
the pack from Fykes.
In May 2015, a federal grand jury indicted Fykes on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Colorado trafficking and
gun charges were dismissed the following month. At some point before Fykes went to
trial on the federal gun charge, Trueblood left Colorado and did not return.
In August 2015, following a three-day trial, a jury convicted Fykes as charged.
The district court sentenced him to 60 months’ imprisonment and 3 years’ supervised
release. This court affirmed. See United States v. Fykes, 678 F. App’x 677 (10th Cir.
2017).
In 2018, Fykes moved pro se under 28 U.S.C. § 2255 to vacate his sentence due to
ineffective assistance of trial counsel and cumulative error. The district court denied the
motion and declined to issue a COA.
DISCUSSION I. Standards of Review
A COA is a jurisdictional prerequisite to our review of the denial of § 2255 relief.
See United States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013). To obtain a COA,
Fykes must make “a substantial showing of the denial of a constitutional right.”
2 28 U.S.C. § 2253(c)(2). This requires Fykes to “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). Because Fykes appears pro se,
we liberally construe his filings, but we do not act as his advocate. See Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
II. Ineffective Assistance of Trial Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that his counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Fykes advances the
following three ineffective-assistance claims.
A. Hearsay
First, Fykes claims that defense counsel was ineffective by not objecting on the
ground of hearsay when Detective Jason Blanscet testified that during Trueblood’s
interrogation, Trueblood said the gun belonged to Fykes. The district court did not
address this claim, however, as Fykes did not present it in his § 2255 motion. It is
axiomatic that a district court cannot be debatably wrong on issues that were not fairly
presented to or decided by it. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.
2012) (denying a COA on issues that were first raised in an appellate reply brief and not
presented to the district court); see also Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13
(10th Cir. 2013) (“We do not generally consider issues that were not raised before the
district court as part of the habeas petition.”).
3 B. Witnesses
Second, Fykes claims that his counsel was ineffective by not calling as witnesses
Trueblood and attorney Phillip Dubois, who represented Fykes in his Colorado criminal
proceedings. Dubois executed an affidavit in support of Fykes’ § 2255 motion stating he
overheard Trueblood in March 2015 admit that the gun was his.
The district court concluded that Fykes’ trial counsel did not perform deficiently
as to either Trueblood or Dubois. Regarding defense counsel’s decision to not call
Trueblood as a witness, the district court noted that roughly two months before trial, a
defense investigator successfully reached Trueblood by phone. Trueblood was reluctant
to speak with the investigator, but Trueblood indicated he was homeless and “moving
from location to location in Minnesota.” R., Vol. III at 51. Also, he denied ever
borrowing a backpack from Fykes and adamantly stated that the gun was not his and that
he knew nothing about it.
Based on these facts, the district court determined that defense counsel made an
objectively reasonable strategic decision to not call Trueblood as a witness. See United
States v. Holloway, 939 F.3d 1088, 1103 (10th Cir. 2019) (“To be constitutionally
deficient, counsel’s performance must have been completely unreasonable, not merely
wrong, so that it bears no relationship to a possible defense strategy.” (internal quotation
marks omitted)). We agree. Trueblood’s statements would have been very damaging to
Fykes’ defense, as they directly refuted Fykes’ theory about how a gun supposedly
belonging to Trueblood got into Fykes’ backpack.
4 Granted, during the phone call with the investigator, Trueblood denied telling
Detective Blanscet that the gun “must be[long]” to Fykes. R., Vol. III at 53 (internal
quotation marks omitted). But that denial would not have measurably assisted Fykes,
given that Trueblood asserted the gun was not his, thereby suggesting by the process of
elimination that it “must be[long]” to Fykes. We conclude that reasonable jurists could
not debate the district court’s determination that Fykes’ counsel did not perform
deficiently by not calling Trueblood as a witness. 1
As for defense counsel not calling Dubois as a trial witness, the district court
noted, among other things, that there was no evidence defense counsel was aware that
Dubois had overheard anything about who the gun belonged to. Indeed, Dubois executed
his affidavit in March 2018—nearly two-and-a-half years after Fykes’ trial. “We
evaluate conduct from counsel’s perspective at the time, not in hindsight.” Hooks v.
Workman, 689 F.3d 1148, 1189 (10th Cir. 2012). Reasonable jurists could not debate the
district court’s determination that Fykes’ counsel did not perform deficiently by not
calling Dubois as a witness.
1 Fykes appears to take issue with the district court’s additional determination that no prejudice resulted from Trueblood not being called as a witness. We need not reach Strickland’s prejudice prong because we have already concluded that the district court’s deficient-performance analysis is not debatable. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”).
5 C. The Presentence Investigation Report (PSR)
Fykes claims that defense counsel was ineffective by not objecting before
sentencing to human-trafficking references in the PSR. 2 Fykes argues that he was not
convicted of trafficking and that he has been prejudiced by trafficking references because
they affect “[t]he outcome of [his] efforts for rehabilitation and custody classification.”
Combined Opening Br. & Appl. for COA at 9. The district court denied the claim,
simply stating that defense counsel did not provide ineffective assistance.
We conclude that reasonable jurists could not debate the district court’s
determination. Fykes has identified no ground on which defense counsel could have
blocked accurate references in the PSR to the background criminal activity that led to his
arrest and ultimate conviction for unlawfully possessing a firearm. Cf. United States v.
Harris, 447 F.3d 1300, 1306 (10th Cir. 2006) (indicating that a defendant’s failure to
challenge the factual accuracy of a PSR allows a district court to rely on undisputed
portions as factual findings); United States v. Mateo, 471 F.3d 1162, 1167 (10th Cir.
2006) (stating that “no limitation should be placed on the information concerning the
background, character, and conduct of a person for the purpose of imposing an
appropriate sentence” (alterations and internal quotation marks omitted)). Counsel is not
2 Defense counsel did file a post-sentencing motion to remove from the PSR “the uncharged and unproven pimping allegations” so the Bureau of Prisons “would have to reclassify [Fykes’] custody score and re-designate him to a minimum security facility.” R., Vol. I at 134. The district court ultimately dismissed that motion for lack of jurisdiction as directed by this court in United States v. Fykes, 733 F. App’x 950, 953 (10th Cir. 2018).
6 ineffective for failing to raise a meritless objection. See Sperry v. McKune, 445 F.3d
1268, 1275 (10th Cir. 2006).
III. Cumulative Error
Finally, Fykes “argues that cumulative error analysis is appropriate because the
Tenth Circuit has already recognized one harmless error in MR. FYKES and the
petitioner has raised both related and unrelated claims in his § 2255 [motion].”
Combined Opening Br. & Appl. for COA at 9. 3 The district court did not mention Fykes’
cumulative error argument. In any event, Fykes provides no clarity regarding the basis
for his argument, and we will not construct arguments for him. See Gallagher, 587 F.3d
at 1067. In short, Fykes identifies no discernible basis on which to obtain a COA on the
ground of cumulative error. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir.
2004) (declining to consider “issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation” (internal quotation marks omitted)).
CONCLUSION
We deny Fykes’ request for a COA and dismiss this matter. We also deny Fykes’
motion to proceed IFP as Fykes has not asserted a reasoned, nonfrivolous argument in
support of his position. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005) (“[I]n order to succeed on a motion to proceed IFP, the movant must show a
3 In Fykes’ direct appeal, this court identified two non-prejudicial errors: (1) the jury instruction defining constructive possession failed to include the element of “intent to exercise dominion or control over the handgun,” Fykes, 678 F. App’x. at 679; and (2) the “district court procedurally erred by departing from the applicable sentencing range without providing the necessary notice,” id. at 687. 7 financial inability to pay the required filing fees, as well as the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised in the action.”).
Finally, we deny Fykes’ “Motion for Limited Remand.”
Entered for the Court
Nancy L. Moritz Circuit Judge