UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MARCAS MCGOWAN, 

 Defendant - Appellant. 

No. 18-3224 

(D.C. Nos. 2:17-CV-02697-JAR & 

2:15-CR-20007-JAR-1) 

(D. Kan.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, PHILLIPS, and EID, Circuit Judges. 

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Marcas McGowan, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 

motion. We deny a COA and dismiss the appeal. 

I 

 McGowan pled guilty to kidnapping resulting in death in violation of 18 

U.S.C. § 1201(a)(1) and 1201(g), and discharging a firearm during a crime of 

violence in violation of § 924(c)(1)(A). In his written plea agreement, McGowan 

admitted that he took the five-year-old child of his girlfriend in his car. Following a 

lengthy police chase, McGowan crashed the car into a construction barricade. He 

 * This order is not binding precedent, except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 16, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

exited the vehicle with a firearm pointed at the pursuing officers, and was shot when 

he refused to lower the firearm. Officers discovered the body of the child in the 

passenger seat, with a gunshot entry at the back of her head. They found no evidence 

of bullets entering the vehicle, and an investigation found in the car a bullet that had 

killed the child and concluded that bullet was fired by McGowan’s firearm. The plea 

agreement recommended a sentence of life imprisonment, the statutory minimum, on 

the kidnapping charge. 

 At his plea hearing, McGowan attested that he had gone over the written plea 

agreement with counsel, understood the terms of the plea agreement, entered into the 

plea agreement willingly and absent coercion, recognized that he would likely 

receive a life sentence, and accepted as true the factual basis for the plea. McGowan 

also acknowledged that he waived various rights by entering a guilty plea. He was 

sentenced to life plus 120 months.

 McGowan filed a § 2255 motion claiming his counsel was ineffective for 

advising him to plead guilty. The district court denied his § 2255 motion and 

declined to grant a COA. McGowan now requests a COA from this court. 

II

A prisoner may not appeal the denial of habeas relief under § 2255 without a 

COA. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2). This 

standard requires McGowan to “show[] that reasonable jurists could debate whether . 

. . the petition should have been resolved in a different manner or that the issues 
3 

presented were adequate to deserve encouragement to proceed further.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). 

To prevail on an ineffective assistance claim, McGowan must demonstrate 

both that “counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient 

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 

(1984). To establish prejudice, a “defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. Because McGowan is appearing pro se, we 

liberally construe his pleadings. United States v. Pinson, 584 F.3d 972, 975 (10th 

Cir. 2009). 

McGowan argues that counsel was ineffective for failing to investigate his 

factual claims about the circumstances of the kidnapping. However, those claims are 

contradicted by the admissions McGowan made before the district court. McGowan 

counters that he did not knowingly and voluntarily accept the plea agreement because 

he disputed the underlying facts. In support of this assertion, McGowan notes that he 

conferred with counsel before admitting important facts at the plea hearing. 

McGowan “fails to overcome the presumption he entered his plea knowingly.” 

United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir. 2014). In the 

agreement itself and during the plea hearing, McGowan stated that he entered the 

plea agreement voluntarily and without pressure or coercion. McGowan 

acknowledged discussing the agreement with his attorney and stated that he was 
4 

satisfied with counsel’s performance. As part of a thorough plea colloquy, McGowan 

also testified that he understood the facts underpinning the charges, and 

acknowledged that the government had evidence sufficient to prove the requisite 

factual allegations. These “solemn declarations made in open court carry a strong 

presumption of verity.” Id. (quotation omitted). Although McGowan contends that 

counsel coerced him into pleading guilty by advising him that he could face the death 

penalty should he go to trial, “[a]dvice—even strong urging by counsel does not 

invalidate a guilty plea.” Fields v. Gibson, 277 F.3d 1203, 1214 (10th Cir. 2002) 

(quotation omitted). 

In his request for a COA, McGowan argues for the first time that counsel was 

ineffective for failing to investigate McGowan’s performance of parental duties 

towards the kidnapped child because the statute contains an exception for parents.1

 

See § 1201(a). “Because this claim was not presented to the district court, we decline 

to consider it on appeal . . . .” Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004). 

McGowan’s claim is unavailing in any event. During the plea colloquy, McGowan 

admitted that he was “not a parent, grandparent, brother, sister, aunt, uncle, or 

individual having legal custody of the victim.” 

 Finally, McGowan contends the district court should have held an evidentiary 

hearing. We review the denial of an evidentiary hearing for abuse of discretion. 

 1

 Although McGown briefly referenced his performance of such duties in his 

filings below, he did not argue that counsel was ineffective for failing to investigate 

these alleged facts. 

 
5 

United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002). Because “the 

motion and the files and records of the case conclusively show that the prisoner is 

[not] entitled to . . . relief,” a hearing was not required. § 2255(b). 

III

 For the foregoing reasons, a COA is DENIED and the appeal is DISMISSED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge