UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KERRY SLOAN, Defendant - Appellant. No. 21-5033 (D.C. Nos. 4:19-C V-00716-CVE-CDL & 4:18-CR-00205-CVE-1) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY 

________________ _________________ Before TYMKOVICH , Chief Judge, MORITZ , and ROSSMAN , Circuit Judges.

________________ _________________ Kerry Sloan, a federal prisoner procee ding pro se, seeks a certificate of appealability (COA) to challenge the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his se ntence. We deny his application for a COA and dismiss this matter. I. Background Sloan pleaded guilty in federal court to one count of transporting a minor in interstate commerce with intent to engage in criminal sexual activ ity, in violation of 18 U.S.C. § 2423(a). He was sentenced to 180 months in prison and ten years of

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### December 3, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 12 supervised release. His plea agreement contained a waiver of his right to collaterally attack his conviction and sentence in a § 2255 proceeding, except for claims of ineffective assistance of counsel. Although represented by an attorney throughout the criminal proceedings, Sloan filed a pro se not ice of appeal. This court dismissed the appeal as untimely. Sloan then filed a pro se § 2255 mo tion and a multitude of supplements, supporting declarations, and other documents , seeking relief on multiple grounds. The government argued that many of Sloan’s claims fell within the scope of his plea waiver and that his ineffective-assistance claims failed on the merits. The district court analyzed the en forceability of the waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Under Hahn , post-conviction waivers are enforceable if the di sputed issue “falls wi thin the scope of the waiver,” “the defendant knowingly and volunt arily waived his [post-conviction] rights,” and “enforcing the waiver would [not] resu lt in a miscarriage of justice.” 359 F.3d at 1325; see also United States v. Viera , 674 F.3d 1214, 1217 (1 0th Cir. 2012) (applying Hahn analysis to § 2255 proceeding). The dist rict court determined Sloan’s waiver was knowing and voluntary and his substantive cl aims fell within the scope of the waiver, including those concerning speedy trial a nd grand jury violations, illegal search and seizure, double jeopardy, malicious prosecuti on, and the validity of the certification of certain Assistant United States Attorneys. The court conclude d Sloan had made no attempt to show that enforcing the waiver would result in a mi scarriage of justice, and the Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 23 court’s own review uncovered no evidence that enforcing the waiver as to those claims within its scope would be unfair or inequitable. The district court next determined Sloan’ s claims of ineffective assistance of counsel fell outside the waiver, but denied re lief on the merits, applying the standard of Strickland v. Washington , 466 U.S. 668, 687 (1984), whic h requires a demonstration that counsel’s performance was deficient and th e deficient performance was prejudicial. The court first rejected Sloan’s claim that counsel should have argued the § 2423(a) conviction was inva lid and unconstituti onal because the government did not prove that § 2423(a) qualifies as a “crime of violence.” The court explained that the commission of a “crime of violence” is not an element of a § 2423(a) offense, so counsel had no reason to raise the argument. 1 The court also rejected Sloan’s reliance on United States v. Davis , 139 S. Ct. 2319 (2019), and other Su preme Court cases concluding that certain other statutes are void for vagueness. The district court explained that unlike the statutory provisions at issue in those cases, § 2423(a) clearly defines what it prohibits— the knowing transportation of a minor in interstate commerce w ith the intent to engage in

1 Section 2423(a) provides: A person who knowingly transports an individual who has not attained the age of 18 years in interstate or fore ign commerce, or in any commonwealth, territory or possession of the United Stat es, with intent th at the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. 18 U.S.C. § 2423(a). Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 34 sexual activity for which any person could be ch arged with a criminal offense. The court further rejected Sloan’s vagueness challenge to sentencing enhancements applied in his case given the Supreme Court’s holding in Beckles v. United States , 137 S. Ct. 886, 890 (2017), that “the advisory [United States Sentencing] Guidelines are not subject to vagueness challenges.” The district court next found meritless Sl oan’s argument that counsel should have demanded that the district court read all th e conditions of supervis ed release into the record at the sentencing hearing. The cour t concluded there is no requirement that the court read mandatory or standa rd conditions of supervised re lease into the record, and the record reflected that the court had orally ad vised Sloan at the sent encing hearing of any special or discretionary conditions. 2
The district court also denied relief on Sloan’s claim that counsel should have argued for a sentence reduction based on an ex cessive disparity between Sloan’s sentence and sentences received by other defendants in similar cases. This argument, the court explained, overlooked that Sl oan had pleaded guilty and that the court had sentenced him to a within-Guidelines sentencing range that the parties had agreed to. Therefore, the court concluded trial counsel had acted reas onably in declining to request a downward variance based on excessive sentencing disparity.

2 In support of these conclusion s, the district court relied on United States v. Diggles , 957 F.3d 551 (5th Cir.) (en banc), cert. denied , 141 S. Ct. 825 (2020). In Diggles , the Fifth Circuit held that the only cond itions of supervised release a court must pronounce at sentencing are those that are discretionary under the supervised-release statute, 18 U.S.C. § 3583( d). 957 F.3d at 559. Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 45 Next, the district court cons idered Sloan’s claim that counsel was ineffective in failing to file a direct appeal despite being advised to do so. The court summarized the evidence regarding this claim as follows: Sloan contended that when counsel met with him to see if he wanted to file an a ppeal, Sloan was “nonre sponsive and highly medicated.” R., Vol. VII at 322 (internal quotation marks omitted). But counsel averred Sloan was “polite and responsiv e,” and if Sloan had been “u nresponsive,” counsel would have filed a notice of appeal as a precaution. Id. at 323 (internal quotation marks omitted). Counsel’s affidavit and declarati on were “clear” that counsel believed Sloan “understood the advice that [counsel] o ffered concerning the advantages and disadvantages of filing an appeal,” and co unsel “understood that [Sloan] made an informed decision not to pr oceed with an appeal.” Id. at 324. Nothing in the record indicated that Sloan had asked counsel to file an appeal within th e time limit. Further, when the government moved to dismiss Sloa n’s pro se appeal as untimely, counsel responded to the motion that he was unaware of any applicable exceptions to the time bar. Based on this evidence, the district c ourt concluded counsel’s performance was not constitutionally deficient for faili ng to file a notice of appeal. See Roe v. Flores-Ortega , 528 U.S. 470, 477 (2000) (“[A] lawyer who disregards specific instructions from the defendant to file a no tice of appeal acts in a manner that is professionally unreasonable.”). The court furt her determined counsel was not obligated to raise frivolous arguments in support of Sloan’s untimely pro se notice of appeal. Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 56 Finally, the district court denied relief on Sloan’s claims regard ing his guilty plea. The court concluded that alt hough there could be a factual dispute concerning whether Sloan told counsel he wanted to withdraw his guilty plea, Sl oan could not show prejudice by the alleged failure to file a motion to w ithdraw the plea because he had not shown any probability the court woul d have granted such a motion. The court explaine d that despite “vague assertions [in his § 22 55 filings] that could be cons trued as a claim of factual innocence,” Sloan had “admitted th e essential elements of the offense at the change of plea hearing and nothing in his filings can be construed as an attempt to withdraw his factual admissions.” R., Vol. VII at 328. Th e change-of-plea hearing was “lengthy . . . , and the Court had no concerns as to the knowing and voluntary nature of his guilty plea.” Id. Sloan also had delayed seek ing to withdraw his plea until just before sentencing, so granting a motion to withdraw the plea woul d have inconvenienced the parties and the court. The court also considered Sloan’s cl aim that counsel failed to consult with him about an earlier plea offer where he would se rve only 24 months in prison. Counsel had informed Sloan that no such o ffer had been made and reminded him that he had rejected a previous offer for the mandatory minimu m sentence under § 2423(a)—120 months. Because counsel had conveyed th e original plea offer and Sloa n had rejected it, the court found Sloan’s failure-to- consult claim meritless. Based on its analysis, the district court denied Sloan’s § 2255 motion. The court also denied a COA. Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 67 II. Discussion Before he may appeal, Sloan must obtain a COA. 28 U.S.C. § 2253(c)(1)(B). To obtain a COA on claims the dist rict court denied on the merits, a petitioner must make “a substantial showing of the denial of a c onstitutional right,” § 2253(c)(2), such that “reasonable jurists would find the district c ourt’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel , 529 U.S. 473, 484 (20 00) (internal quotation marks omitted). We construe Sloan’s pro se filings liberally but do not act as his advocate. See Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). In his COA application, Sloan does not ch allenge the district court’s conclusion that the collateral-review waiver was enforceabl e or that his substantive claims fell within the scope of that waiver. However, he maintains his counsel was constitutionally ineffective under the two-part Strickland test and that reasonable jurists could disagree with the district court’s denial of his claims. He also asserts the district court improperly decided disputed factual issues . We disagree and conclude the district court properly resolved Sloan’s motion. To the extent Sloan argues the merits of subs tantive claims he raised in the district court or contends the district court overlooke d such claims, they are subject to the plea waiver, the enforceability of wh ich he has not challenged. Hi s complaint that the district court overlooked some of his ineffective-assistance claims lacks sufficient development to merit appellate review. See Christian Heritage Acad. v. Okla. Secondary Sch.
Activities Ass’n , 483 F.3d 1025, 1031 (10th Cir. 2007 ) (“Where an appellant lists an issue, but does not support the issue with argument, the issue is waived on appeal.”). Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 78 And his suggestions that the district judge had a conflict of interest are unsubstantiated conclusions. Sloan also makes conclusory assertions that are either of uncertain relevance to the denial of his § 2255 motion or plainly frivolous. Regardless of Sloan’s limited argument, an d having independently reviewed the record, Sloan’s appellate submissions, 3 and the applicable law, we are confident that reasonable jurists could not debate the correct ness of the district court’s disposition of Sloan’s § 2255 motion. Accordingly, we deny a COA and dismiss this matter.

Entered for the Court
Timothy M. Tymkovich Chief Judge

3 In addition to his comb ined COA application and opening brief, Sloan has submitted additional documents to this court. Appellate Case: 21-5033 Document: 010110613884 Date Filed: 12/03/2021 Page: 8