United States v. McKinney

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 17, 2025
• Docket: 24-5098
• Status: Unpublished

Opinion

Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 17, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-5098 (D.C. Nos. 4:24-CV-00145-CVE-CDL & COREY SHAMON MCKINNEY, 4:20-CR-00019-CVE-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MORITZ, EID, and FEDERICO, Circuit Judges. _________________________________

Corey Shamon McKinney applies for a certificate of appealability (COA) to

challenge the district court’s denial of his 28 U.S.C. § 2255 motion for post-conviction

relief. We deny a COA.

I. Background

Relying on information from a confidential informant, Tulsa police obtained

warrants to search a home where Mr. McKinney resided. In searches in November 2019

and January 2020 they found drugs, guns, and an illegal gun silencer. Mr. McKinney

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 2

was indicted on multiple drug and firearm charges. The district court denied his motion

to suppress the evidence from the searches, and he was convicted on all counts.1

He appealed, arguing a Fourth Amendment violation under Franks v. Delaware,

438 U.S. 154 (1978), which “requires the exclusion of evidence obtained through a

search warrant that was issued only because an affiant recklessly or intentionally included

false information in the search-warrant affidavit.” United States v. Norton, 130 F.4th

824, 832 (10th Cir. 2025). Mr. McKinney claimed the trial testimony of the officer who

obtained the search warrants contradicted statements he had included in his search-

warrant affidavits and showed he had “made material and reckless misstatements in the

affidavits.” United States v. McKinney, No. 21-5074, 2023 WL 111044, at *3 (10th Cir.

Jan. 5) (unpublished), cert. denied, 143 S. Ct. 2479 (2023).

We rejected that argument, holding Mr. McKinney had neither shown a Franks

violation nor made the preliminary showing that would entitle him to a Franks hearing.

See id. at *5. Comparing the affidavits with the trial testimony, we concluded “the trial

testimony does not contradict the affidavit statements,” id. at *3, and that “[t]o the extent

any tension could be found” between the two, Mr. McKinney had not shown the officer

“‘entertained serious doubts’” about the affidavits or “acted with ‘deliberate falsehood or

reckless disregard for the truth.’” Id. at *4 (quoting United States v. Xiang, 12 F.4th

1176, 1183 (10th Cir. 2021) and Franks, 438 U.S. at 171).

1 We briefly summarize the background without repeating facts we described in more detail in Mr. McKinney’s direct appeal. See United States v. McKinney, No. 21-5074, 2023 WL 111044 (10th Cir. Jan. 5, 2023) (unpublished), cert. denied, 143 S. Ct. 2479 (2023). 2 Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 3

After the Supreme Court denied certiorari, Mr. McKinney filed a pro se § 2255

motion. The district court denied his motion and denied a COA.

II. COA Standard

To appeal, Mr. McKinney must obtain a COA. See 28 U.S.C. § 2253(c). To do so

where the district court rejected a § 2255 claim on the merits, he must show “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). Where the district

court denied relief on procedural grounds, he must show “[1] that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and [2] that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id.

III. Discussion

Because Mr. McKinney proceeds pro se, we liberally construe his arguments, but

we stop short of acting as his advocate. United States v. Pinson, 584 F.3d 972, 975

(10th Cir. 2009). His COA application presents two claims of ineffective assistance of

counsel, addressed below. To prevail on these claims he “must establish that

(1) counsel’s performance ‘fell below an objective standard of reasonableness,’ and

(2) ‘the deficient performance prejudiced the defense.’” Frederick v. Quick, 79 F.4th

1090, 1104 (10th Cir. 2023) (quoting Strickland v. Washington, 466 U.S. 668, 687, 688

(1984)), cert. denied, 144 S. Ct. 2634 (2024).

3 Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 4

A.

First, Mr. McKinney argues his counsel was ineffective because he did not move

for a Franks hearing or renew the motion to suppress based on the officer’s testimony.

The district found this claim indistinguishable from the Franks argument this court

“considered and rejected on direct appeal.” R. vol. 1 at 468. It described our prior

decision as raising a “procedural bar” or “procedural default” to raising this ineffective

assistance claim in his § 2255 motion. Id. at 467, 469. It also ruled that even if

Mr. McKinney’s claim is not procedurally barred, he had not shown his counsel’s failure

to request a Franks hearing or renew the motion to suppress was objectively

unreasonable, both given our conclusion that the officer’s testimony did not contradict his

affidavits, and also because his counsel had “highlight[ed] gaps in the plaintiff’s case,

particularly the lack of direct evidence showing [Mr. McKinney] in possession of drugs

or a firearm,” and, the district court reasoned, further pursuing the alleged Franks

violation “would likely have distracted the jury.” Id. at 469–70.

We deny a COA on this claim. “In general, we have discretion to affirm on any

ground adequately supported by the record,” and we may apply that principle when ruling

on an application for a COA. Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005)

(internal quotation marks and brackets omitted). We see no general “procedural bar” that

prevented Mr. McKinney from claiming ineffective assistance of counsel in his § 2255

motion. But given the basis of his particular claim, the reasoning of our decision on

direct appeal shows it cannot succeed.

4 Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 5

The central claim in Mr. McKinney’s COA application is that inconsistencies

between the warrant affidavits and the officer’s trial testimony showed a “plain Franks

violation” that his trial counsel failed to recognize or rectify. Aplt. Br. at 16 (italicization

added). But on direct appeal, we compared the affidavits with the testimony, and we held

that “the trial testimony does not contradict the affidavit statements.” McKinney,

2023 WL 111044, at *3 (emphasis added).

Mr. McKinney’s § 2255 ineffective assistance claim is based on the same

supposed contradictions between the affidavits and the testimony that we considered on

direct appeal. Our prior decision therefore prevents him from showing ineffective

assistance of counsel under Strickland. He cannot show it was objectively unreasonable

for his trial counsel not to request a Franks hearing based on the officer’s trial testimony,

given that we already concluded the testimony did not show a Franks violation or entitle

Mr. McKinney to a hearing. He likewise has not shown prejudice, because even if his

counsel had requested a hearing or renewed the motion to suppress, we previously

concluded that suppression was not required. See id. at *5.

Thus, although we did not adjudicate Mr. McKinney’s ineffective assistance claim

on direct appeal, it could only succeed if we were to reconsider the same arguments we

rejected on direct appeal. We generally will not reconsider in a § 2255 motion arguments

that we resolved on direct appeal. See United States v. Trent, 884 F.3d 985, 994–95

(10th Cir. 2018) (applying law-of-the-case doctrine). Because our prior analysis prevents

Mr. McKinney from carrying his burden under Strickland—and because we see no

5 Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 6

reason to revisit or change that prior analysis —we conclude the denial of his § 2255

motion was not reasonably debatable.

Mr. McKinney resists this conclusion, arguing it was only because his counsel did

not request a Franks hearing that he does not have evidence to show the officer acted

with reckless disregard for the truth. But again, we already concluded he was not entitled

to a Franks hearing based on the officer’s testimony, even if his counsel had requested

one. See McKinney, 2023 WL 111044, at *4. And his COA application offers no

suggestion of what other evidence might have shown the officer acted with disregard for

the truth or “entertained serious doubts” about the affidavits. Xiang, 12 F. 4th at 1183.2

Last, we also liberally construe Mr. McKinney’s COA application as arguing his

counsel should have further cross-examined the officer about the alleged inconsistences,

given our statement that his direct appeal had “at most . . . demonstrated that [the

officer’s] testimony should have been clarified.” Id. at *5. But he has not shown how

further “clarification” of the officer’s testimony would have created a “reasonable

probability that . . . the result of the proceeding would have been different.” Frederick,

79 F.4th at 1105 (quoting Strickland, 466 U.S. at 694). To the contrary, as we previously

reasoned, any alleged inconsistencies were “more readily explained by a negligent or

innocent error . . . than by a choice to submit an affidavit despite serious doubts about its

truthfulness.” McKinney, 2023 WL 111044, at *4. Mr. McKinney offers no reason to

2 For this reason, we also conclude the district court did not abuse its discretion in resolving Mr. McKinney’s § 2255 motion without holding an evidentiary hearing. 6 Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 7

revisit that conclusion, and does not show how further questioning of the officer would

have been likely to change the outcome of his trial.

B.

Second, Mr. McKinney claims his counsel was deficient because he failed to

adequately defend against the 18 U.S.C. § 924(c) charge that Mr. McKinney possessed a

firearm in furtherance of a drug trafficking crime. He argues his counsel did not

adequately challenge the evidence showing he constructively possessed at least one of the

guns found inside the residence. Relatedly, he argues his counsel should have

investigated who else lived there, to raise reasonable doubt that the guns belonged to

Mr. McKinney rather than to someone else.

Mr. McKinney does not directly challenge the sufficiency of the evidence; nor

could he, since he did not do so on direct appeal. See United States v. Bolden, 472 F.3d

750, 751–52 (10th Cir. 2006) (“Failure to present an issue on direct appeal bars a

defendant from raising it in a § 2255 motion unless he can show cause excusing his

procedural default and actual prejudice . . . or . . . a fundamental miscarriage of justice

. . . .”). But his ineffective assistance claim is nevertheless premised on the contention

that “there was not legally sufficient proof that [Mr. McKinney p]ossessed a firearm in

furtherance of a drug trafficking crime,” allegedly making his counsel ineffective for

failing to show the evidence was insufficient to convict. Aplt. Opening Br. at 26.

The district court rejected this claim on its merits, concluding Mr. McKinney’s

counsel had, in fact, “raised a defense to the § 924(c) charge on the grounds that

[Mr. McKinney] did not possess a firearm or did not possess a firearm in furtherance of a

7 Appellate Case: 24-5098 Document: 10-1 Date Filed: 04/17/2025 Page: 8

drug trafficking crime.” R. vol. 1 at 470–471. It observed that his counsel elicited

testimony that other relatives also stayed at the residence; cross-examined the officer who

obtained the warrants about the lack of direct evidence showing Mr. McKinney possessed

the guns; and emphasized in opening and closing arguments that no direct evidence tied

the guns to Mr. McKinney. The district court concluded this showed trial counsel’s

performance had been reasonable, and that Mr. McKinney had not shown prejudice.

We agree that Mr. McKinney has not shown prejudice. His trial counsel did argue

that no direct evidence established Mr. McKinney’s possession of the guns and that the

jury should therefore acquit him. It is evident the jury disagreed and found the

circumstantial and indirect evidence sufficient to prove Mr. McKinney possessed at least

one of the guns. Even if his counsel might have raised different challenges to the

sufficiency of the evidence, Mr. McKinney has not shown a likelihood that would have

changed the jury’s conclusion that the evidence was sufficient to show he possessed a

gun in furtherance of drug trafficking and therefore convict him under § 924(c). The

district court’s denial of his § 2255 motion therefore was not reasonably debatable.

IV.

For the reasons stated above, we deny a COA and dismiss this matter.

Entered for the Court

Allison H. Eid Circuit Judge