United States v. Laskey

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 27, 2025
• Docket: 25-5087
• Status: Unpublished

Opinion

Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 27, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-5087 (D.C. Nos. 4:24-CV-00441-GKF-CDL MILLARD RAY LASKEY, & 4:22-CR-00186-GKF-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

Millard Ray Laskey, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s order dismissing

his 28 U.S.C. § 2255 motion. 1 He also requests to proceed in forma pauperis

(IFP) on appeal. Exercising jurisdiction under 28 U.S.C. § 1291 and § 2253, we

deny his motion to proceed IFP and we deny his application for a COA.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Laskey proceeds pro se, we liberally construe his arguments, but we do not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 2

BACKGROUND

In 2022, a federal grand jury indicted Laskey on three counts related to

Laskey’s striking his stepson with a machete in Indian Country. At his initial

appearance, Laskey completed an affidavit on his financial ability to employ

defense counsel. The magistrate judge found that Laskey lacked the finances to

obtain counsel and thus appointed him counsel.

Laskey moved for and received two trial continuances. Just two days

before trial was set to begin, Laskey moved to continue a third time, on the

ground that Laskey wanted new counsel. The motion stated that Laskey was

“dissatisfied” with his appointed counsel and that he “reportedly ha[d] an

attorney in mind to come on as private counsel.” United States v. Laskey, No.

4:22-CR-00186-GKF-1, (N.D. Okla. Sept. 24, 2022), ECF No. 66 at 1.

On the morning that trial was set to begin, the trial court held a hearing

to resolve the motion to continue and to determine counsel. At the hearing,

Laskey told the trial court that he had “talked to another attorney who was

supposed to enter” an appearance the week before, but that he had been unable

to contact that attorney. United States v. Laskey, No. 4:22-CR-00186-GKF-1,

(N.D. Okla. Feb. 24, 2023), ECF No. 98 at 4. Laskey confirmed that the

attorney had not entered an appearance in the case.

In response, the trial court noted that the motion was filed at the

“eleventh hour,” that the court’s packed schedule would be greatly burdened by

another continuance, and that Laskey’s appointed counsel had been “exemplary

2 Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 3

in its zealousness” thus far. Id. at 22–24. The trial court also noted that Laskey

had conceded that he could communicate with his attorneys and that he had not

shown that his disagreements with his attorneys “preclude[ed] an adequate

defense.” Id. at 22. For these reasons, the trial court denied Laskey’s motion

for a continuance and his request to substitute counsel.

The trial began as scheduled that day. The jury acquitted him on two

charges, but it convicted him of assault with a dangerous weapon with intent to

do bodily harm in Indian Country. He was sentenced to 54 months’

imprisonment. On direct appeal, Laskey argued that the trial evidence failed to

establish jurisdiction. We affirmed his conviction. United States v. Laskey, No.

22-5115, 2024 WL 3898299, at *1 (10th Cir. Aug. 22, 2024) (unpublished).

After his direct appeal, Laskey filed a § 2255 motion to vacate or set

aside his conviction, arguing for the first time that the trial court denied him his

Sixth Amendment right to choose his own trial counsel. He also asserted that

his trial counsel was ineffective for failing to protect his right to choose his

own counsel and for failing to present certain evidence at trial. The district

court denied the motion and denied Laskey a COA. Laskey timely appealed,

moving for a COA and to proceed IFP.

DISCUSSION

Laskey must obtain a COA to appeal the district court’s decision denying

his § 2255 motion. See 28 U.S.C. § 2253(c). To do so, he must show “that

reasonable jurists would find the district court’s assessment of the

3 Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 4

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). As stated, the district court concluded that Laskey had not been

denied (I) the right to choose his own counsel or (II) the right to effective

assistance of trial counsel. Neither conclusion is reasonably debatable.

I. Choice of Counsel

Laskey’s § 2255 motion asserts that the trial court violated his right to

choose his own counsel when it denied his motion to continue and substitute

counsel.

The Sixth Amendment right to counsel includes “the right of a defendant

who does not require appointed counsel to choose who will represent

him.” United States v. Gonzalez–Lopez, 548 U.S. 140, 144 (2006) (emphasis

added). As the district court noted, Laskey’s motion failed to show that he

could acquire counsel without court appointment. 2 Thus, we doubt that the right

to choose one’s own counsel even applied to Laskey.

But even if Laskey didn’t require court-appointed counsel, his right to

choose his own counsel was not absolute. United States v. Holloway, 826 F.3d

1237, 1241 (10th Cir. 2016). As the Supreme Court has explained, “the Sixth

Amendment grants a defendant a fair opportunity to secure counsel of his own

2 During his initial appearance, Laskey filed an affidavit showing that he lacked the resources to employ counsel and required court-appointed counsel. He contradicted that affidavit with only a morning-of-trial statement that he “may” have gotten the finances while awaiting trial. United States v. Laskey, No. 4:22-CR-00186-GKF-1, (N.D. Okla. Feb. 24, 2023), ECF No. 98 at 4–5. 4 Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 5

choice.” Luis v. United States, 578 U.S. 5, 11 (2016) (citation modified);

Gonzalez–Lopez, 548 U.S. at 152 (noting a trial court’s “wide latitude in

balancing the right to counsel of choice against the needs of fairness and

against the demands of its calendar” (citation modified)). Thus, we have held

that “only when the trial court unreasonably or arbitrarily interferes with a

defendant’s right to counsel of choice do we agree a conviction cannot stand[.]”

Holloway, 826 F.3d at 1242 (citation modified).

The trial court did not unreasonably or arbitrarily interfere with Laskey’s

right to counsel of his own choice. Private counsel never entered or tried to

enter an appearance on Laskey’s behalf. Laskey required court-appointed

counsel for months. After already receiving two trial continuances, he moved

for his third continuance—purportedly to obtain private counsel—two days

before trial was set to begin. In support, Laskey identified some disagreements

with his appointed counsel, but he conceded that he could communicate with

them. And, as the trial court found, his appointed counsel had been exemplary

and were prepared to try the case as scheduled. Further, granting Laskey’s

eleventh-hour motion for a third continuance would have severely burdened the

trial court’s packed calendar. Under these circumstances, no jurist could debate

that the trial court reasonably denied Laskey his choice of counsel. 3

3 We note that Laskey did not raise his choice-of-counsel argument on direct appeal. “A defendant who fails to present an issue on direct appeal is barred from raising the issue in a § 2255 motion, unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or 5 Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 6

II. Ineffective Assistance of Counsel

The Sixth Amendment also grants defendants “the right to the effective

assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)

(citation modified). To prevail on a claim that counsel provided constitutionally

ineffective assistance, a defendant must show (1) that his attorney’s

“representation fell below an objective standard of reasonableness,” and

(2) that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 688, 694.

Laskey claims that he received ineffective assistance of counsel in two

ways. First, he asserts that his trial counsel was ineffective because she did not

argue that the trial court violated his Sixth Amendment right to choose his own

counsel when it denied his motion to continue. But, as explained above, the

can show that a fundamental miscarriage of justice will occur if his claim is not addressed.” United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). For example, an unraised issue is not procedurally barred when “trial or appellate counsel were constitutionally ineffective in failing to present [the] issue[.]” United States v. Channon, No. 21-2027, 2022 WL 6872077, at *3 (10th Cir. Oct. 12, 2022) (unpublished) (citing Massaro v. United States, 538 U.S. 500, 509 (2003)). Here, Laskey contends that his counsel “did not take any action to address” the violation of his right to choose his own counsel. Op. Br. at 3. Liberally construing his COA application, we assume that he means that his choice-of-counsel claim is not procedurally barred because his counsel was ineffective in failing to raise the issue on appeal. We doubt the validity of that argument and think that Laskey’s failure to raise the choice-of-counsel issue on direct appeal likely bars him from raising that issue now in his § 2255 motion. At any rate, we resolve the choice-of-counsel claim on the merits because the government did not raise the procedural-bar issue. See Allen, 16 F.3d at 379 (explaining when a court can “simply address the merits of the § 2255 motion” without sua sponte addressing the procedural bar). 6 Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 7

trial court did not violate Laskey’s right to choose his own counsel. So his

counsel was not deficient.

Second, Laskey claims that his trial counsel was ineffective because she

failed to present certain evidence supporting his self-defense theory and she

failed to present evidence and make arguments about statements he made while

tightly handcuffed. The district court thoroughly analyzed these arguments,

concluding that Laskey had failed to show that his counsel’s performance was

constitutionally deficient or prejudicial. We agree with the district court:

Laskey’s counsel presented plenty of evidence and argument about the self-

defense theory, and she tried to suppress and mitigate the statements he made

while handcuffed. In short, Laskey highlights no prejudicially deficient

performance. His application for a COA fails to persuade us that the district

court’s decision is reasonably debatable.

CONCLUSION

We deny Laskey’s application for a COA and dismiss this appeal. We

also deny his motion to proceed IFP because he failed to demonstrate “the

existence of a reasoned, nonfrivolous argument on the law and facts in support

7 Appellate Case: 25-5087 Document: 15-1 Date Filed: 08/27/2025 Page: 8

of the issues raised on appeal.” Rolland v. Primesource Staffing, LLC, 497 F.3d

1077, 1079 (10th Cir. 2007).

Entered for the Court

Gregory A. Phillips Circuit Judge