United States v. Viquesney

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALSNovember 13, 2020 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 20-3145 (D.C. Nos. 2:18-CV-02152-JAR & v. 2:16-CR-20060-JAR-1) (D. Kan.) LOGAN VIQUESNEY,

Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

This matter is before the court on Logan Viquesney’s pro se request for a

certificate of appealability (“COA”). He seeks a COA so he can appeal the denial

of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing no

appeal is allowed from a “final order in a proceeding under section 2255” unless

the movant first obtains a COA). Viquesney also seeks permission to proceed on

appeal in forma pauperis (“IFP”). This court grants Viquesney’s request to

proceed on appeal IFP. Because, however, he has not “made a substantial

showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies

his request for a COA and dismisses this appeal. Viquesney pleaded guilty, in the United States District Court for the

District of Kansas, to one count of Transportation of a Minor with Intent to

Engage in Criminal Sexual Activity. See 18 U.S.C. §§ 2423(a), 2426. Viquesney

did not file a direct appeal but, instead, filed the instant, timely § 2255 motion.

In his motion, Viquesney asserted his trial counsel was ineffective in failing to

move to dismiss the indictment because, according to Viquesney, the necessary

element of illegal sexual activity was not satisfied as a sixteen-year-old is capable

of consent in Kansas.

In a well-stated and thoroughly researched Order, the district court denied

Viquesney’s request for collateral relief because Viquesney’s counsel did not

perform deficiently in failing to contest the indictment. In so concluding, the

district court ruled that § 2423 sets out a continuing offense and any such

continuing offense against the United States that took place in multiple districts

may be prosecuted in any district in which the offense started, continued, or

concluded. Viquesney’s offense continued across multiple states and concluded

in Kansas. The record here makes clear that, at a minimum, Viquesney’s sexual

activity with the victim was in violation of Illinois law. See United States v.

Cole, 262 F.3d 704, 708–09 (8th Cir. 2001) (holding a defendant was properly

indicted in Arkansas state court under § 2423(a) where the criminal sexual

activity element was fulfilled by violation of Florida statute criminalizing sexual

-2- activity with a person less than 16 years of age). Venue was proper in Kansas

pursuant to the terms of 18 U.S.C. § 3237. 1

Viquesney seeks a COA so he can appeal the district court’s resolution of

his § 2255 motion. The granting of a COA is a jurisdictional prerequisite to an

appeal from the denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To be entitled to a COA, Viquesney must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is,

he must demonstrate “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Id.

(quotations omitted). In evaluating whether Viquesney has satisfied this burden,

we undertake “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of her claims. Id. at 338. Although he need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

1 Although the district court concluded it was beyond doubt trial counsel’s performance was not deficient, it also went on to conclude in the alternative that, under the unique facts of this case, Viquesney failed to demonstrate prejudice. Although this court has no reason to doubt the correctness of the district court’s analysis in this regard, we need not further explore the matter given the undoubtable correctness of the district court’s performance determination.

-3- Having undertaken a review of Viquesney’s appellate filings, the district

court’s Order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Viquesney is not entitled

to a COA. In so concluding, this court has nothing to add to the district court’s

cogent Order. Accordingly Viquesney’s request for a COA is DENIED and this

appeal is DISMISSED.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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