Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 28, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Respondent - Appellee,
v. No. 24-2098 (D.C. Nos. 1:21-CV-00507-JB-DLM & DERRICK IVAN JIM, 1:10-CR-02653-JB-GBW-1) (D. N.M.) Petitioner - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges. _________________________________
Petitioner Derrick Ivan Jim, a federal prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion
and to proceed on appeal in forma pauperis. See 28 U.S.C. § 2253(c)(1)(B). He argues
that the district court erred in ruling on his motion without holding an evidentiary hearing
on his ineffective assistance of counsel claim. We exercise jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253, deny Petitioner’s request for a COA, and deny his motion to
proceed in forma pauperis.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 2
I.
After a grand jury indicted Defendant on two counts of aggravated sexual assault
in violation of 18 U.S.C. §§ 1153, 2241(a)(1) and 2246(2)(A), Petitioner signed a plea
agreement with the United States in February 2011. The plea agreement stated that by
signing, Petitioner admits certain facts related to the charges against him. The plea
agreement further stated,
I, Derrick Ivan Jim, am an enrolled member of the Navajo Nation and hold myself out as an Indian. On the evening of August 12, 2010, I was taken to the house of [K.T.] to hang out and drink alcohol with [K.T.] and some of her friends. Prior to August 12th, I did not know [K.T.] or her friends. [K.T.]’s house is located in Fruitland, New Mexico within the exterior boundaries of the Navajo Nation. At one point in the early morning hours of August 13, 2010 [K.T.] went into the house and I followed her. She laid down on the couch in her living room. I then dragged her to a back bedroom of her house. I then engaged in both vaginal and anal intercourse with [K.T.] against her will and by using force. She fought me off and I left the house. (“Admission of the Facts.”) The plea agreement also contained the following stipulation:
Except under circumstances where the Court, acting on its own, fails to accept this plea agreement, [Jim] agrees that, upon [his] signing of this plea agreement, the facts that [Jim] has admitted under this plea agreement as set forth above, as well as any facts to which [he] admits in open court at [his] plea hearing, shall be admissible against [him] under Federal Rule of Evidence 801(d)(2)(A) in any subsequent proceeding, including a criminal trial, and [Jim] expressly waives [his] rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts [he] admits in conjunction with this plea agreement. (“Rule 410 waiver.”) The district court accepted Petitioner’s guilty plea during the
February 8, 2011 plea hearing. During the hearing, the district court asked Petitioner if
he had “engage[d] in [a] sexual act with [K.T.] by using force on [K.T.],” to which
Petitioner responded, “[y]es, sir.”
2 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 3
About three months after he signed the plea agreement, Petitioner, acting pro se,
wrote two letters to the court and moved for a new attorney. In one of those letters,
Petitioner stated that his attorney rushed him into the plea agreement despite having
several unanswered questions. The court held an ex parte hearing. Before the court
granted his motion to appoint a new counsel, Petitioner privately retained a new attorney.
Through his new counsel, Petitioner moved to withdraw the guilty plea. After a
hearing, the district court granted Petitioner’s motion. Counsel for Petitioner then moved
to exclude from trial certain evidence including Petitioner’s Admission of Facts and his
statements during the plea hearing (together, the “Admission and Plea Statements”) based
in part on Federal Rule of Evidence 410. The district court denied the motion.
Before trial, Petitioner stipulated that he was a Native American and that the
incident occurred within the Navajo Nation, so the only remaining issue was whether
Petitioner knowingly used force to cause K.T. to engage in sex. Petitioner’s only defense
was that his sexual encounter with the victim, K.T, was consensual. As evidence of
force, the government offered K.T.’s testimony, two Sexual Assault Nurse Examiners
(SANEs), an emergency room doctor, two of K.T.’s friends who were present shortly
after the incident, and a criminal investigator.
K.T. testified that she first met Petitioner on the night of August 12, 2010, at a
social event held underneath the carport of her home. She went inside the house after
becoming nauseous, and eventually laid down on the couch in her living room and closed
her eyes. Petitioner had followed her inside and when K.T. opened her eyes, Petitioner
was standing over her. K.T. testified that Petitioner grabbed her by her ankles, dragged
3 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 4
her off the couch, and down the hall to her bedroom in her house where he removed her
clothing from the waist down and penetrated her vaginally and anally with his penis. She
described how she tried to fight off Petitioner but due to his size and strength he held her
down. Petitioner eventually moved to the laundry room and left through its exterior door.
Crawling to the door, K.T. yelled for her friends outside. K.T.’s friends describe how
they heard a scream before she managed to unlock the door. After she opened the door,
her friends saw that she was crying and unable to talk. When she could speak again, she
told her friends that Petitioner raped her. Her friends drove her to the emergency room to
receive medical treatment soon after.
The SANE nurses and the emergency room doctor who treated K.T. testified that
she was experiencing “severe distress,” that she sustained multiple lacerations to her
vaginal and anal areas, and that she had bruises on her forearms, back, and knees. [Id.
at 50.] The doctor recalled that K.T.’s pain was so severe that he ordered a CT scan of
her abdomen to determine whether she had a ruptured rectal wall or had suffered other
life-threatening injuries. Testifying as an expert, a SANE nurse concluded that K.T.’s
injuries were consistent with forced penetration and sexual assault, and that she had never
seen injuries like K.T’s resulting from consensual sex or toilet paper.
Along with witness testimony, the government quoted Petitioner’s Admission of
Facts in its opening statement and one of the government’s witnesses read it aloud. The
government also described the Admission of Facts and Petitioner’s plea hearing
statements in its closing arguments. Petitioner testified that other people prepared the
4 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 5
Admission of Facts, that he had limited time to review it, that he signed it only because
his attorney told him to, and that he did not admit the facts therein.
The jury returned a guilty verdict of two counts of aggravated sexual abuse. [We
affirmed his convictions on appeal holding that the district court did not err in enforcing
his Rule 410 waiver and allowing the government to present to the jury Petitioner’s
admissions made in the plea agreement and during his plea hearing. United States v. Jim,
786 F.3d 802, 804 (10th Cir. 2015).
On June 1, 2021, Petitioner timely moved to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 in the United States District Court for the District of
New Mexico arguing that counsel was ineffective for failing to adequately challenge the
admission of his Admission and Plea Statements. A magistrate judge recommended that
the district court deny the motion because the record conclusively established that
counsel’s failure to suppress his Admission and Plea Statements did not prejudice
Petitioner. Petitioner filed objections to the magistrate judge’s report and
recommendations. On June 31, 2024 the district court issued a memorandum opinion and
order adopting the magistrate judge’s report and recommendations and overruling
Petitioner’s objections. The same day, the district court also issued an order denying
Petitioner a certificate of appealability. Petitioner, acting pro se, now seeks a COA.
Petitioner contends on appeal that the district court erred by failing to hold an
evidentiary hearing on his ineffective assistance of counsel claim before denying his
§ 2255 motion. Petitioner argues that he “does not have a burden to prove anything at
this stage,” and that “he made the requisite showing to establish credible allegations of
5 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 6
deficient performance and prejudice.” Petitioner argues that § 2255 entitles him to an
evidentiary hearing because his claim is “neither contradicted by the record, inherently
credible, or based on conclusions rather than statements of fact.”
II.
Section 28 U.S.C. § 2255(a) provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Section 2255(b) provides that unless a federal prisoner’s § 2255 motion “and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the
[district] court shall . . . grant a prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect thereto.” The Supreme Court
construed this language to mean that an evidentiary hearing is unnecessary “where the
issues raised by the motion were conclusively determined either by the motion itself or by
the ‘files and records’ in the trial court,” or “where the motion alleges circumstances ‘of a
kind that the District Judge could completely resolve by drawing upon his own personal
knowledge or recollection.’” United States v. Fields, 949 F.3d 1240, 1246 (10th Cir.
2019) (quoting Machibroda v. United States, 368 U.S. 487, 494–95 (1962)).
When the district court does not hold an evidentiary hearing, our review proceeds
in two steps: first we “ask whether the defendant’s allegations, if proved, would entitle
him to relief, an inquiry we conduct de novo,” and if so, “we then determine whether the
6 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 7
denial of the evidentiary hearing constituted an abuse of discretion.” Id. (quoting United
States v. Herring, 935 F.3d 1102, 1107 (10th Cir. 2019)). A petitioner seeking relief
under § 2255 “bears the burden of ‘alleg[ing] facts which, if proved, would entitle him to
relief.’” Brecheen v. Reynolds, 41 F.3d 1343, 1362 (10th Cir. 1994) (quoting Townsend
v. Sain, 372 U.S. 293, 312 (1963); see also Smith v. Wainwright, 777 F.2d 609, 615
(11th Cir. 1985) (“The burden is on [petitioner] in this habeas corpus proceeding to
establish the need for an evidentiary hearing.”).
Defendant argues that the district court erred by denying his § 2255 motion
without holding an evidentiary hearing to determine whether his counsel was ineffective
for failing to suppress his Admission and Plea Statements. The Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984) held that determining whether counsel’s
assistance was so defective as to require reversal has two components. Fields, 949 F.3d
at 1247. First, “the defendant must show that counsel’s performance was deficient”
which requires showing that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting
Strickland, 466 U.S. at 687). Second, “the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
(quoting Strickland, 466 U.S. at 687). If a petitioner cannot show both “deficient
performance” and “sufficient prejudice,” his claim of ineffective assistance fails. See
Hooks v. Workman, 606 F.3d 715, 724 (10th Cir. 2010) (citing Strickland, 466 U.S.
at 700). Thus, a district court need not address both Strickland components. Id.
7 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 8
We first consider whether Petitioner demonstrated that his trial counsel’s failure to
adequately challenge the admission of his Admission and Plea Statements created
sufficient prejudice under Strickland. To carry his burden, Petitioner must establish “that
there is a reasonable probability that, but for counsel’s error, ‘the result of the proceeding
would have been different.’” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)
(quoting United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)). A “reasonable
probability is a probability sufficient to undermine confidence in the outcome” of the
trial. Id. (quoting Strickland, 466 U.S. at 694). This standard does not require that the
petitioner show that “counsel’s deficient conduct more likely than not altered the
outcome in the case,” but it does require more than “mere speculation.” Id. (quoting
Strickland, 466 U.S. at 693). A reviewing court “must consider the totality of the
evidence before the judge or jury” as some errors “have a pervasive effect on the
inferences to be drawn from the evidence,” whereas others “will have an isolated, trivial
effect.” Strickland, 466 U.S. at 695–96. Thus, a verdict “only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
support.” Id. at 696.
Petitioner argues that Smith v. Wainwright, 777 F.2d 609 (11th Cir. 1985)
illustrates the prejudice he suffered at the hands of his trial counsel. He argues that, like
in Smith, his “confession[] provided the primary evidence offered and the only evidence
which the state needed to convict him,” which “eliminated the need for the state to submit
any other evidence.” Smith, 777 F.2d at 616–17. The Smith court concluded that
because the defendant’s trial counsel “failed to move to suppress [his] confessions, the
8 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 9
state’s case was not subjected to the meaningful adversarial testing which is required
under our system of justice.” Id. at 617.
We agree with the district court that Petitioner fails to show sufficient prejudice
under Strickland. Besides Petitioner’s Admission and Plea Statements, the government
presented K.T.’s testimony of the assault as well as testimony from SANE nurses, an
emergency room doctor, and her friends who witnessed her severe emotional distress
immediately following the assault. The government also presented expert testimony that
K.T.’s injuries were inconsistent with consensual sex, toilet paper, or shaving. Rather,
the expert concluded that K.T.’s injuries were consistent with forced penetration and
sexual assault. In sum, the government presented abundant evidence for which a
reasonable jury could have found that Petitioner knowingly used force to cause K.T. to
engage in a sexual act, and that the encounter between Petitioner and K.T. was not
consensual. Unlike Smith, Petitioner’s Admission and Plea Statements were not the
“primary” evidence presented against him. And here, unlike Smith, the government’s
case against Petitioner endured meaningful adversarial testing. Before trial, Petitioner’s
counsel filed motions in limine to exclude certain evidence, including his Admission and
Plea Statements. At trial, Petitioner’s counsel cross-examined the government’s
witnesses and presented two defense witnesses.
Although we recognize that, as Petitioner contends, a confession is “powerful
evidence that is ‘like no other evidence,’” Harmon v. Sharp, 936 F.3d 1044, 1081
(10th Cir. 2019) (quoting Arizona v. Fulminante, 499 U.S. 279, 296 (1991)), Petitioner’s
Admission and Plea Statements did not prejudice him. Considering the overwhelming
9 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 10
evidence of guilt presented at trial by the government, we do not think Petitioner has
shown a “reasonable probability that, but for counsel’s error, ‘the result of the proceeding
would have been different’”—the type of prejudice required under Strickland. Byrd,
645 F.3d at 1168 (quoting Challoner, 583 F.3d at 749). Like the district court, we agree
that Petitioner has not carried his burden to show a reasonable probability that even if his
trial counsel more thoroughly challenged the admission of Petitioner’s Admission and
Plea Statements, the jury would have voted to acquit. Petitioner does not address the
totality of evidence presented at trial, and whether he satisfies Strickland, making only
conclusory statements about prejudice in his appeal brief. Because Petitioner cannot
satisfy Strickland’s prejudice prong, we need not address whether his trial counsel’s
performance fell below the standard for a reasonable attorney to conclude that his trial
counsel was ineffective. Hooks, 606 F.3d at 724.
If a petitioner’s motion “and the files and records of the case conclusively show
that the prisoner is entitled to no relief,” the district court need not hold an evidentiary
hearing to resolve his § 2255 motion. United States v. Galloway, 56 F.3d 1239, 1240 n.1
(10th Cir. 1995) (quoting § 2255(b)). Here, Petitioner fails to show that Strickland
entitles him to relief even if his trial counsel more vigorously sought exclusion of his
Admission and Plea Statements. Without a viable argument under Strickland, Petitioner
10 Appellate Case: 24-2098 Document: 16-1 Date Filed: 05/28/2025 Page: 11
fails to show that the district court’s denial of an evidentiary hearing constituted an abuse
of discretion.1 We therefore deny Petitioner’s request for a COA.
Entered for the Court
Joel M. Carson III Circuit Judge
1 We also deny Petitioner’s in forma pauperis request because he failed to show the existence of a reasoned, nonfrivolous argument on the facts in support of the issue he raised on appeal. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). 11