United States v. Mullins ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 5, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6014
(D.C. Nos. 5:17-CV-00161-M &
DENNIS M. MULLINS, 5:13-CR-00264-M-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, EID, and CARSON, Circuit Judges.
_________________________________
Dennis M. Mullins, a pro se federal prisoner, seeks a certificate of appealability
(COA) to challenge a district court order that denied his 28 U.S.C. § 2255 motion for
sentencing relief. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny
Mullins’ application and dismiss this appeal.
I. BACKGROUND
In 2014, Mullins pled guilty to transporting and receiving child pornography.
Multiple sentencing enhancements were applied to his base offense level, including:
* a five-level enhancement for engaging in a pattern of activity involving the
sexual abuse of a minor—here, two of his daughters and stepson, see
*
This order is not binding precedent except under the doctrines of law of the case,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.
U.S. Sentencing Guidelines Manual (USSG) § 2G2.2(b)(5) (U.S.
Sentencing Comm’n 2013);
* a four-level enhancement for transporting and receiving material portraying
sadistic or masochistic conduct, see id. § 2G2.2(b)(4);
* a two-level enhancement for distributing child pornography via a
file-sharing program, see id. § 2G2.2(b)(3)(F); and
* a two-level enhancement for transporting and receiving material involving a
minor under the age of twelve, see id. § 2G2.2(b)(2).
Mullins’ total offense level was ultimately calculated to be thirty nine, and his
criminal history category was set at one. The resulting Guideline sentence range was
262 to 327 months’ imprisonment. See USSG ch. 5 pt. A. The statutory maximum
sentence for each of the two pornography counts was 240 months. See 18 U.S.C.
§ 2252(b)(1). The district court “referenced the calculated Guidelines range in
determining an appropriate sentence” and then sentenced Mullins to the statutory
maximums, running them concurrently. United States v. Mullins, 632 F. App’x 499, 503
(10th Cir. 2015).
Mullins appealed the sentence, challenging the pattern-of-activity enhancement as
unconstitutional and unsupported by the evidence. A panel of this court affirmed. Id. at
507.
Mullins then filed the instant § 2255 motion, arguing that his counsel was
ineffective in handling his guilty plea and sentencing, and that a 2016 Guideline
amendment retroactively negates his distribution enhancement. The district court denied
the motion without an evidentiary hearing and declined to issue a COA. Mullins now
renews his request for a COA on four grounds: (1) the district court’s “refus[al] to
provide . . . transcripts of relevant hearings”; (2) “ineffective assistance of counsel for
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failing to interview relevant witnesses”; (3) “ineffective assistance of counsel for failing
to challenge the pattern of activity enhancement”; and (4) the district court’s refusal to
retroactively apply Guideline Amendment 801. COA Request at 3-4 (emphasis omitted).
II. DISCUSSION
A. Standards of Review
“The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,
1241 (10th Cir. 2010). To obtain a COA, Mullins must make “a substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such “that reasonable jurists
could debate whether . . . the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further,”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). “The
COA inquiry . . . is not coextensive with a merits analysis,” Buck v. Davis, 137 S. Ct.
759, 773 (2017), and is limited to “an overview of the claims in the habeas petition and a
general assessment of their merits,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
B. Transcripts
Mullins argues that the district court “actively took steps to deprive [him] of [an]
impartial and disinterested tribunal” by “refus[ing]” to provide him the sentencing
transcripts cited in the government’s opposition to his § 2255 motion. COA Request at 5.
But the district court did no such thing. Rather, in June 2017, the district court granted
Mullins’ motion for transcripts and ordered the government to provide them. The district
court also extended the time period in which Mullins could file a reply brief, setting the
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deadline at thirty days from his receipt of the transcripts. Nevertheless, Mullins filed his
reply brief in the district court soon after the district court entered its order—apparently,
before he received any transcripts. Six months later, the district court denied his § 2255
motion. In that six-month period, Mullins filed two motions inquiring about the status of
his case, but he did not inform the district court that he had not received the transcripts.
Given Mullins’ silence on the issue, we will not fault the district court for resolving his
§ 2255 motion despite his purported non-receipt of the transcripts. Moreover, Mullins
does not indicate which government argument(s) he was unable to adequately address
without the transcripts. In particular, he has surmised no “legally salient” information in
the transcripts that might entitle him to relief. See United States v. Pursley, 550 F. App’x
575, 579-80 (10th Cir. 2013) (concluding that the district court did not err in denying
prisoner’s request for transcripts, where there was no showing that the transcripts had any
bearing on his entitlement to postconviction relief). Although we liberally construe pro
se filings, we will not craft a party’s arguments or otherwise serve as an advocate. See
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008); Perry v. Woodward, 199 F.3d
1126, 1141 n.13 (10th Cir. 1999).
C. Ineffective Assistance of Counsel
An ineffective-assistance claim has two components. First, the movant “must
show that counsel’s performance was deficient.” Strickland v. Washington, 466 U.S.
668, 687 (1984). The challenged conduct must be evaluated from counsel’s perspective
at the time of the alleged error, and “every effort should be made to eliminate the
distorting effects of hindsight.” Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996)
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(internal quotation marks omitted). Second, the movant must also show “that the
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. In other
words, there must be “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
1. Failure to Interview Relevant Witnesses
Mullins argues that his counsel was ineffective in not interviewing two of the three
victims—stepson Matthew Whitefield and daughter Denise Mullins—as well as his wife
(Rhonda Mullins), sister (Judy Bowermaster), and third daughter (Angela Mullins, who
was not included in the pattern-of-activity enhancement). All five of these family
members have provided affidavits in support of relief from the pattern-of-activity
enhancement.1
In assessing counsel’s performance, the district court focused on counsel’s failure
to interview Whitefield, given this court’s observation on direct appeal that Whitefield’s
statements to investigators were sufficient by themselves to support the enhancement.
Specifically, Whitefield told investigators that beginning in the third grade, Mullins
showed him pornography, demonstrated masturbation, and masturbated him on more than
one occasion. The district court additionally cited Whitefield’s written statement at
sentencing, in which he forgave Mullins and did not deny the abuse. As for Whitefield’s
1
In summary, the family members’ affidavits provide the following. Whitefield
“retract[s] [his] previous statement,” which he claims “was taken using intimidation and
coercion.” R., Vol. V at 86. Denise claims that her prior statements were “taken out of
context.” Id. at 89. Rhonda offers various reasons she disbelieves the claims made by
Mullins’ other daughter, Julie. Angela states that “[n]othing ever happened to [her] while
in [her] father’s care,” and she believes Julie lacks “sound mind.” Id. at 83. Finally,
Mullins’ sister states that Mullins’ ex-wife admitted Julie is dishonest.
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affidavit submitted in support of § 2255 relief, the district court noted that while he
retracts his statements, he does not state Mullins did not abuse him. Based on these
circumstances, the district court determined that counsel’s failure to interview Whitefield
was not deficient, given “counsel’s perspective at the time of the alleged error.”
R., Vol. V at 182.
We conclude that the district court’s determination is not debatable. The entirety
of the circumstances at the time of Mullins’ sentencing provided no indication that
interviewing Whitefield would have yielded information undermining imposition of the
pattern-of-activity enhancement. In addition to the circumstances cited by the district
court, we add that at sentencing, Mullins addressed the court and did not deny the abuse
allegations; rather, he indicated he could not remember. See Mullins, 632 F. App’x
at 502. Moreover, Mullins’ wife told investigators that her son, Whitefield, had
“confronted Mullins about what he had done,” and she “implied [that] Mullins had
inappropriately touched [Whitefield] when he[ ] was a minor.” Id. at 501 (internal
quotation marks omitted). In short, counsel’s failure to predict that Whitefield would
ultimately retract his statements to investigators does not render it debatable that
counsel’s failure to interview Whitefield was deficient. See Bullock v. Carver, 297 F.3d
1036, 1052 (10th Cir. 2002) (stating that “clairvoyance is not a required attribute of
effective representation” (internal quotation marks omitted)). And because Whitefield’s
statements alone supported the pattern-of-activity enhancement, we agree with the district
court that even if it were debatable that Mullins’ counsel performed deficiently by not
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interviewing the other family members, the district court’s conclusion that any such
omission was not prejudicial is not debatable.2
2. Failure to Challenge the Pattern-of-Activity Enhancement
Mullins’ request for a COA on this ground appears to raise the district court’s
denial of his twelfth ground for § 2255 relief. Specifically, in the district court, Mullins
argued that defense counsel “provided ineffective assistance of counsel by failing to
obtain available evidence to present on appeal regarding the pattern of activity
enhancement.” R., Vol. V at 74.3 Mullins elaborated that, had his counsel “conducted
the required investigation[,] he would have discovered that Matthew Whitefield’s
testimony was used improperly and was actually withdrawn” and that “Julie Mullins was
a liar.” Id. at 75. According to Mullins, these discoveries would have prompted this
court on direct appeal to invalidate the pattern-of-activity enhancement.
The district court denied relief, referring to its determinations that (1) counsel’s
failure to interview Whitefield was not deficient performance, given counsel’s
perspective at the time of sentencing; and (2) counsel’s failure to interview/investigate
the other family members was not prejudicial, given that Whitefield’s statements were
alone sufficient to support the enhancement. We conclude that the district court’s denial
2
To the extent Mullins complains that counsel’s investigation of Julie’s
allegations was deficient, the district court correctly determined that such performance
would not have been prejudicial, given the sufficiency of Whitefield’s sentencing
statements in supporting the enhancement.
3
Mullins concedes in his request for a COA that his counsel in fact challenged the
pattern-of-activity enhancement at sentencing: “The Appellant objected to this
enhancement when the PSR was written.” COA Request at 11.
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of relief on this ground is not debatable. As we stressed above, counsel’s performance
must be evaluated without “the distorting effects of hindsight.” Edens, 87 F.3d at 1114(internal quotation marks omitted). Specifically, Whitefield did not retract his statements
until a year after this court decided Mullins’ direct appeal. It hardly bears pointing out
that Mullins’ counsel could not have acted on Whitefield’s retraction of his statements
until Whitefield actually did so.4
D. Guideline Amendment 801
When Mullins was sentenced in September 2014, the law in this circuit did not
impose a mens rea requirement for a § 2G2.2(b)(3)(F) distribution enhancement.
See United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013) (“hold[ing] that
§ 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability
of the program he is using to view child pornography”). In November 2016, the
Sentencing Commission rejected Ray by issuing Amendment 801, which added language
to the enhancement requiring that “the defendant knowingly engaged in distribution.”
See USSG app. C, amend. 801, at 140 (Supp. Nov. 1, 2016). The Commission noted that
the circuits were split on the mens rea issue and it decided to “adopt[ ] the approach” of
the circuits requiring “that the defendant knew of the file-sharing properties of the
program.” Id. at 145. In doing so, the Commission stated that the knowledge
4
To the extent Mullins argues that Whitefield’s affidavit “calls into question this
court’s previous ruling” on direct appeal, COA Request at 11, we point out that § 2255 is
not a vehicle to relitigate issues already decided, see United States v. Rodriguez, 768 F.3d
1270, 1272 (10th Cir. 2014).
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requirement was “[b]ased on testimony, public comment, and data analysis,” id. at 145,
and was necessary to “clarify[ ] the mental state required for distribution,” id. at 146.
Citing Amendment 801, Mullins contends not only that his two-level distribution
enhancement should be removed, but also that he should receive a further two-level
reduction in his offense level under USSG § 2G2.2(b)(1), which generally applies if “the
defendant’s conduct was limited to the receipt or solicitation of material involving the
sexual exploitation of a minor” and there was no intent “to traffic in, or distribute, such
material.” The district court determined that Amendment 801 does not retroactively
apply because the amendment effected a substantive change in the legal landscape, rather
than a mere clarification. See United States v. Winder, 557 F.3d 1129, 1136 (10th Cir.
2009) (observing that “a subsequent amendment to the Guidelines can sometimes be
given retroactive effect if the changes are clarifying rather than substantive” (internal
quotation marks omitted)). We conclude that the district court’s determination is not
debatable.5
Generally, an amendment is clarifying if “it does not overrule existing precedent,
it revises a commentary note rather than a guideline, and the authors characterized it as
clarifying.” United States v. Gigley, 213 F.3d 503, 506 n.3 (10th Cir. 2000). Only the
5
We note that Amendment 801 is not listed in U.S.S.G. § 1B1.10(d) as having
retroactive effect for purposes of 18 U.S.C. § 3582(c)(2). For that reason, Mullins
properly seeks relief under 28 U.S.C. § 2255, instead of 18 U.S.C. § 3582, by arguing
that the amendment is clarifying, rather than substantive. See United States v. Ramirez,
698 F. App’x 943, 946 (10th Cir. 2017) (observing that a retroactive sentencing
clarification bears on “‘whether a defendant was correctly sentenced under the guidelines
in the first place,’” which implicates § 2255, rather than § 3582(c)(2) (quoting United
States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003)).
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third factor appears to weigh in favor of Amendment 801 being a clarifying amendment.
In particular, the Commission explained that the amendment was necessary to “clarify[ ]”
the requisite mental state for distribution. But the Commission also indicated it was
“adopt[ing]” an approach not previously specified in the enhancement. In any event, the
other two factors reveal that the amendment is substantive, as it overruled our existing
precedent and revised the enhancement’s language, not just the language of the
commentary. See United States v. Groves, 369 F.3d 1178, 1183 (10th Cir. 2004) (“If a
guideline amendment contradicts either the plain meaning of the preexisting guideline or
controlling case law, that amendment is necessarily substantive.”).
III. CONCLUSION6
We deny Mullins’ application for a COA and we dismiss this appeal.
Entered for the Court
Joel M. Carson
Circuit Judge
6
Insofar as Mullins challenges the district court’s decision to resolve his § 2255
motion without an evidentiary hearing, an evidentiary hearing on a § 2255 motion is
unnecessary if “the motion and files and records of the case conclusively show that the
prisoner is entitled to no relief.” United States v. Lopez, 100 F.3d 113, 119 (10th Cir.
1996) (internal quotation marks omitted). For the reasons discussed throughout this
order, we conclude that reasonable jurists could not debate whether the district court’s
decision to forgo an evidentiary hearing was an abuse of discretion. See United States v.
Gonzalez, 596 F.3d 1228, 1244 (10th Cir. 2010) (denying request for COA on failure to
conduct evidentiary hearing because “there were no relevant, disputed issues of fact that
needed to be resolved”); Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 860 (10th Cir.
2005) (recognizing that an evidentiary hearing is not necessary when “[t]he record refutes
the claim of ineffective assistance”).
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