United States v. Mercer ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 16, 2020
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-6147
v.
(D.C. Nos. 5:17-CV-00207-M &
5:14-CR-00280-PRW-1)
DONOVAN GENE MERCER,
(W.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
This matter is before the court on Donovan Mercer’s counseled 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). Because he has not “made a substantial
showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies
Mercer’s request for a COA and dismisses this appeal.
Following a jury trial, Mercer was convicted of three counts of accessing or
attempting to access a computer disk that contained child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). United States v. Mercer, 772
F. App’x 631, 633 (10th Cir. 2019) (Mercer II); United States v. Mercer, 653 F.
App’x 622, 624-25 (10th Cir. 2016) (Mercer I). This court affirmed Mercer’s
convictions on direct appeal. Mercer I, 653 F. App’x at 631. Mercer then filed
the instant § 2255 motion raising multiple claims. The district court denied relief.
Mercer II, 772 F. App’x at 632-33. On appeal, this court granted Mercer a COA
on two claims:
(1) the prosecution submitted false evidence in Government Exhibit
401 (GE 401), a summary exhibit listing the dates and times of
downloads of files containing child pornography onto Mr. Mercer’s
computer, and (2) his trial counsel acted ineffectively in failing to
show him discovery from the government and in failing to pursue an
alibi defense. These claims stem from Mr. Mercer’s contention that
GE 401 incorrectly identified the times of the downloads.
Id. at 633. We then remanded these claims to the district court to conduct an
evidentiary hearing and resolve factual questions involving the accuracy of GE
401. Id. at 634-35, 637. On remand, after holding an evidentiary hearing, the
district court found, as a matter of fact, that the information set out in GE 401
was accurate. Because the evidence in GE 401 was not false, the district court
concluded (1) the government’s introduction of GE 401 at trial did not violate
Mercer’s constitutional rights, and (2) Mercer’s counsel did not provide
ineffective assistance by failing to work with Mercer to advance at trial an alibi
defense.
-2-
Mercer seeks a COA so he can appeal the district court’s resolution of his
claims relating to GE 401. The granting of a COA is a jurisdictional prerequisite
to Mercer’s appeal from the denial of his § 2255 motion. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). To be entitled to a COA, he must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make the requisite showing, Mercer 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 he has satisfied this burden, we undertake “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
of his 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.
Having undertaken a review of Mercer’s counseled combined application
for COA and opening brief, 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 Mercer is not entitled to a COA. The correctness of the district
court’s factual findings, especially viewed under the highly deferential “clearly
-3-
erroneous standard,” 1 is not reasonably subject to debate. Mercer’s assertion he
preserved challenges to “numerous evidentiary errors affecting the district
court’s” findings despite his failure to make contemporary objections is
completely without merit. See Appellant’s Combined Application for COA and
Amended Br. at 22. In support of the assertion he preserved for review
evidentiary errors on the part of the district court, Mercer cites to a brief passage
from the transcript at the close of the evidentiary hearing. Id. The identified
passage, however, cannot reasonably be construed as any kind of evidentiary-
based challenge to the testimony of the government’s witnesses. See App. Vol. II,
at 34. And Mercer’s assertion the district court plainly erred in admitting and
considering the government’s evidence is sufficiently lacking in merit so as to not
be deserving of further proceedings.
Because Mercer has not made a substantial showing of the denial of a
constitutional right, he is not entitled to a COA. Accordingly his request for a
COA is DENIED and this appeal is DISMISSED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
See United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (holding
that the clear error standard applies to a district court’s factual findings in § 2255
proceedings).
-4-