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    United States v. Ray, 10th Cir. (2014)

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    This order denies a certificate of appealability to Austin Alan Ray, who is seeking to appeal the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Ray pleaded guilty to receipt of child pornography and was sentenced to 102 months in prison followed by 7 years of supervised release, with several special conditions. In his § 2255 motion, Ray argued ineffective assistance of counsel and that one sentencing guideline was unconstitutional. The district court denied the motion, and the appeals court here denies a certificate of appealability, finding that Ray has not made a substantial showing that his constitutional rights were denied.

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    United States v. Ray, 10th Cir. (2014)

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    This order denies a certificate of appealability to Austin Alan Ray, who is seeking to appeal the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Ray pleaded guilty to receipt of child pornography and was sentenced to 102 months in prison followed by 7 years of supervised release, with several special conditions. In his § 2255 motion, Ray argued ineffective assistance of counsel and that one sentencing guideline was unconstitutional. The district court denied the motion, and the appeals court here denies a certificate of appealability, finding that Ray has not made a substantial showing that his constitutional rights were denied.

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    Filed: 2014-10-09 Precedential Status: Non-Precedential Docket: 14-3126

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    This order denies a certificate of appealability to Austin Alan Ray, who is seeking to appeal the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Ray pleaded guilty to receipt of child pornography and was sentenced to 102 months in prison followed by 7 years of supervised release, with several special conditions. In his § 2255 motion, Ray argued ineffective assistance of counsel and that one sentencing guideline was unconstitutional. The district court denied the motion, and the appeals court here denies a certificate of appealability, finding that Ray has not made a substantial showing that his constitutional rights were denied.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    51 views11 pages

    United States v. Ray, 10th Cir. (2014)

    Uploaded by

    Scribd Government Docs
    This order denies a certificate of appealability to Austin Alan Ray, who is seeking to appeal the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Ray pleaded guilty to receipt of child pornography and was sentenced to 102 months in prison followed by 7 years of supervised release, with several special conditions. In his § 2255 motion, Ray argued ineffective assistance of counsel and that one sentencing guideline was unconstitutional. The district court denied the motion, and the appeals court here denies a certificate of appealability, finding that Ray has not made a substantial showing that his constitutional rights were denied.

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    FILED

    United States Court of Appeals


    Tenth Circuit

    October 9, 2014
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    AUSTIN ALAN RAY,

    No. 14-3126
    (D.C. Nos. 6:13-CV-01407-EFM and
    6:11-CR-10029-EFM-1)
    (D. Kan.)

    Defendant - Appellant.

    ORDER
    DENYING CERTIFICATE OF APPEALABILITY

    Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

    Defendant-Appellant Austin Alan Ray, a federal inmate appearing pro se,


    seeks a certificate of appealability (COA) to challenge the district courts denial
    of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255.
    Because Mr. Ray has not made a substantial showing of the denial of a
    constitutional right, 28 U.S.C. 2253(c)(2), we deny his request for a COA and
    dismiss the appeal.

    Background
    On August 2, 2011, Mr. Ray pleaded guilty to the knowing, intentional, and

    unlawful receipt of child pornography in violation of 18 U.S.C. 2252(a)(2).


    With a total offense level of 34 and a criminal history category of I, the
    Guidelines range of imprisonment was 151 to 188 months. The district court
    sentenced Mr. Ray to 102 months imprisonment and a seven-year term of
    supervised release. Mr. Ray appealed the sentence and it was affirmed on appeal.
    United States v. Ray, 704 F.3d 1307 (10th Cir. 2013).
    Significant for our purposes here, the district court imposed seventeen
    special conditions of supervised release. Among other conditions, the district
    court (1) prohibited Mr. Ray from having unsupervised contact with minors; (2)
    prohibited Mr. Ray from accessing or possessing any pornographic material,
    including material that depicts only adults; (3) subjected Mr. Ray to periodic,
    unannounced and/or random examinations of his computer and other Internetcapable devices; and (4) required Mr. Ray to participate in an approved substance
    abuse program and refrain from using alcohol and other intoxicants during the
    term of the program.
    Mr. Ray advanced two legal arguments in support of his 2255 motion.
    First, he claimed ineffective assistance of counsel, arguing that counsel should
    have objected to several of the special conditions of supervised release. Second,
    Mr. Ray raised a facial challenge to the sentencing range associated with USSG
    2G2.2, arguing that this range violates the Eighth Amendments prohibition
    against cruel and unusual punishment. The district court denied the 2255
    -2-

    motion, rejecting the ineffective assistance claim for want of a showing of


    deficient performance and rejecting the Eighth Amendment claim as procedurally
    barred. United States v. Ray, No. 6:11CR-10029EFM, 2014 WL 1646889 (D.
    Kan. Apr. 23, 2014). On appeal, Mr. Ray reasserts these claims and, in addition,
    argues that the district court abused its discretion by (a) refusing to order a
    response from the government and (b) failing to conduct an evidentiary hearing.

    Discussion
    A COA is a jurisdictional prerequisite to an appeal from the denial of a
    2255 motion. See 28 U.S.C. 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S.
    322, 336 (2003). For those claims the district court denied on the merits, a
    movant must demonstrate that reasonable jurists would find the district courts
    assessment of the constitutional claims debatable or wrong. Slack v. McDaniel,
    529 U.S. 473, 484 (2000). For those claims denied on procedural grounds, a
    movant must also demonstrate that the district courts procedural ruling was
    likewise debatable. Id.
    The failure to raise an issue at trial or on appeal imposes a procedural bar
    to collateral review. United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004).
    Despite this procedural bar, a movant can have the merits of his claim heard if he
    can establish that his claim fits within either one of two well recognized
    exceptions. Id. First, a movant can overcome the procedural bar by showing
    -3-

    both good cause for failing to raise the issue earlier, and that the courts failure
    to consider the claim would result in actual prejudice to his defense. Id. A
    successful claim for ineffective assistance of counsel constitutes cause and
    prejudice for purposes of surmounting the procedural bar. United States v.
    Harms, 371 F.3d 1208, 1211 (10th Cir. 2004). Second, a movant may also
    overcome the procedural bar by showing that a fundamental miscarriage of
    justice would result from a failure to entertain the claim. United States v.
    Richards, 5 F.3d 1369, 1370 (10th Cir. 1993) (internal quotation marks omitted).
    A.

    Ineffective Assistance of Counsel

    To succeed on a claim for ineffective assistance of counsel, a movant must


    demonstrate (a) deficient performance and (b) prejudice. Strickland v.
    Washington, 466 U.S. 668, 688, 693 (1984). To establish deficient performance,
    a movant must show that his or her attorneys acts or omissions were outside the
    wide range of professionally competent assistance. Id. at 690. The attorneys
    performance must be assessed in light of the facts of the particular case, viewed
    as of the time of counsels conduct. Id. This standard of review is highly
    deferential, Kimmelman v. Morrison, 477 U.S. 365, 381 (1986), because
    counsel is strongly presumed to have rendered adequate assistance and made all
    significant decisions in the exercise of reasonable professional judgment.
    Strickland, 466 U.S. at 690.
    To establish prejudice, a movant must show that there is a reasonable
    -4-

    probability that, but for his counsels professional errors, the result of the
    proceeding would have been different. Id. at 694. The focus of the inquiry here
    is whether counsels deficient performance render[ed] the result of the trial
    unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506
    U.S. 364, 372 (1993).
    Mr. Ray argues that the district court applied the Strickland test inflexibly
    and afforded counsels performance too much deference. Aplt. Br. at 9. He
    suggests that recent Supreme Court case law governing ineffective assistance of
    counsel claims demonstrates that the Strickland standard is less deferential than
    the district court viewed it. See Missouri v. Frye, 132 S. Ct. 1399 (2012); Lafler
    v. Cooper, 132 S. Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).
    This argument is without merit. While recent cases have applied the Strickland
    test in new and different contexts, none of these cases call into question the
    deference that a reviewing court gives an attorneys conduct, viewed at the time
    of decision-making. Moreover, the cases cited by Mr.Rayall cases dealing with
    defense counsels duty to provide the defendant with accurate information during
    the plea negotiation processsimply do not lower the bar for a petitioner making
    an ineffective assistance claim.
    District courts have considerable discretion in setting the conditions of
    supervised release. United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir.
    2007). Any conditions imposed, however, must be both constitutional and satisfy
    -5-

    the statutory requirements set out in 18 U.S.C. 3583(d). United States v. Hahn,
    551 F.3d 977, 982 (10th Cir. 2008). Accordingly, these conditions must:
    First, . . . be reasonably related to at least one of [the] following: the
    nature and circumstances of the offense, the defendants history and
    characteristics, the deterrence of criminal conduct, the protection of
    the public from further crimes of the defendant, and the defendants
    educational, vocational, medical, or other correctional needs. Second,
    they must involve no greater deprivation of liberty than is reasonably
    necessary to achieve the purpose of deterring criminal activity,
    protecting the public, and promoting the defendants rehabilitation.
    Third, they must be consistent with any pertinent policy statements
    issued by the Sentencing Commission.
    United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011) (citations omitted).
    We consider the various conditions below.
    1.

    Restriction on Unsupervised Contact With Minors

    The district courts conclusion that Mr. Rays counsel did not perform
    deficiently when he failed to object to, and/or appeal from, this special condition
    is not reasonably debatable given circuit authority. Despite Mr. Rays contention
    that this condition is vulnerable to attack on overbreadth and vagueness grounds,
    this court has upheld the imposition of similar conditions. Mike, 632 F.3d at
    69698. In Mike, this court held that such restrictions are neither overbroad nor
    vague because they do not extend to casual [sic] or chance meetings. Id. at 697
    (quoting United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001)). Because Mike
    was decided before Mr. Ray was sentenced and is binding precedent in this
    circuit, the failure to object to the imposition of this special condition was not an

    -6-

    omission that rendered counsels performance objectively unreasonable.


    Therefore, the district court properly concluded that Mr. Rays claim as to this
    special condition fails the first prong of the Strickland test.
    2.

    Restriction on Access to, and Possession of, Adult Pornographic


    Materials

    Likewise, the district courts rejection of the failure to challenge this


    condition as ineffective assistance is not reasonably debatable. As noted by the
    district court, such conditions are often imposed in connection with child
    pornography offenses. Ray, 2014 WL 1646889, at *6. Mike is in accord. Mike,
    632 F.3d at 700 n.9. Looking beyond Mike, there is ample case law holding that
    restrictions on the possession of all pornographic materials are permissible when
    the defendant is now, or has been, convicted of a sex offense. See, e.g., United
    States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011); United States v.
    Thielemann, 575 F.3d 265, 272758 (3d Cir. 2009); United States v. Vinson, 147
    F. Appx 763, 773 (10th Cir. 2005). The Sixth Amendment guarantee to effective
    counsel simply does not require defense counsel to object to, and appeal from,
    conditions of supervised release that have been upheld in a number of federal
    courts of appeals and are often considered standard sex offender conditions.
    See Mike, 632 F.3d at 690 (noting that a restriction on possessing any sexually
    explicit materials is one of the districts standard sex offender conditions).
    3.

    Consent to Access and Examine Computers and Other InternetCapable Devices


    -7-

    There is substantial support for these types of conditions in case law. See
    United States v. Goddard, 537 F.3d 1087, 108990 (9th Cir. 2008); United States
    v. Knight, 86 F. Appx 2, 3 (5th Cir. 2003). Indeed, probationary searches of a
    convicts person and effects are not at all uncommon. See, e.g., United States v.
    White, 244 F.3d 1199, 1208 (10th Cir. 2001). Given a conviction for receiving
    and distributing child pornography over the Internet, the nexus between this
    condition and the offense is apparent. Further, the Sentencing Guidelines
    specifically recommend such conditions. See USSG 5D1.3(d)(7)(C). With all
    of this in mind, Mr. Rays attorney was not required to lodge a constitutional
    attack against the validity of these conditions in order to meet the standard of
    objective reasonableness. The district courts rejection of the failure to challenge
    this condition as ineffective assistance is not reasonably debatable.
    4.

    Mandatory Participation in an Approved Substance Abuse Program

    Finally, Mr. Ray challenges his lawyers performance because he did not
    object to the special condition requiring Mr. Ray to participate in an approved
    substance abuse program, refrain from the use of drugs or alcohol during
    participation in the program, and share in its costs (based on his ability to pay).
    But the district court cited to evidence in the record that Mr. Ray admitted to
    smoking marijuana three to six times per day up until November 2010 and that
    Mr. Rays psychiatric evaluation revealed that he suffered from cannabis
    dependence. Ray, 2014 WL 1646889, at *8. Additionally, the district court noted
    -8-

    that Mr. Ray admitted to consuming alcohol either every month or every other
    month, despite the fact that Mr. Ray was 20 years old when he entered his guilty
    plea. Id. The district courts rejection of the failure to challenge this condition as
    ineffective assistance is not reasonably debatable given the factual basis for the
    condition.
    B.

    Eighth Amendment Challenge to USSG 2G2.2

    Mr. Ray also contends that 2G2.2 of the Sentencing Guidelines violates
    the Eighth Amendments prohibition against cruel and unusual punishment.
    According to Mr. Ray, the sentencing range associated with 2G2.2 is grossly
    disproportionate to the underlying offenseespecially for first-time offenders.
    Aplt. Br. at 1012. The district courts conclusion that Mr. Rays Eighth
    Amendment challenge is procedurally barred and that he has failed to establish
    either (a) cause and actual prejudice, or (b) a fundamental miscarriage of justice
    is not reasonably debatable. Mr. Ray makes no argument that his attorney was
    ineffective for failing to make this constitutional challenge. Rather, he only
    argues that he could find no legal authority to support his facial challenge. But
    several of the legal authorities cited by Mr. Ray in his motion to the district
    courtauthorities criticizing the legal and policy bases for child pornography
    sentenceswere published well before Mr. Rays conviction. Furthermore, a
    cursory look at cases from around the country demonstrates that Eighth
    Amendment challenges to child pornography sentences are not at all uncommon.
    -9-

    See, e.g., United States v. Polk, 546 F.3d 74 (1st Cir. 2008); United States v.
    Paton, 535 F.3d 829 (8th Cir. 2008); United States v. Johnson, 451 F.3d 1239
    (11th Cir. 2006).
    Mr. Ray similarly cannot establish that a failure to entertain his Eighth
    Amendment claim will result in a fundamental miscarriage of justice. The
    fundamental miscarriage of justice exception to procedural default is a markedly
    narrow one, implicated only in extraordinary case[s] where a constitutional
    violation has probably resulted in the conviction of one who is actually innocent.
    United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012) (internal
    quotations and citations omitted). Here, Mr. Ray makes no attempt to assert
    actual innocence, but rather attempts only to attackin a facial, as opposed to asapplied mannerthe legislative judgment behind child pornography sentences.
    Accordingly, we do not find that a failure to entertain Mr. Rays claim will result
    in a fundamental miscarriage of justice.
    Lastly, Mr. Ray contends that the district court abused its discretion by
    not compelling the government to respond to his 2255 motion. According to
    Mr. Ray, if the district court had ordered a response, and Mr. Rays counsel had
    an opportunity to reply, the district court might have concluded that he was
    entitled to relief. Given the legal nature of the issues, no evidentiary hearing was
    required and we cannot say that the district court abused its discretion by
    resolving the legal issues without the governments assistance. See 28 U.S.C.
    - 10 -

    2255(b); Rule 4(b), Rules Governing Section 2255 Proceedings.


    We DENY a COA and DISMISS the appeal.

    Entered for the Court

    Paul J. Kelly, Jr.


    Circuit Judge

    - 11 -

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