UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant, 

v. 

NICKOLAUS ANNTWANN DOUGLAS, 

 Defendant - Appellant. 

No. 20-5064 

(D.C. Nos. 4:18-CR-00196-CVE; 

4:20-CV-00093-CVE-FHM) 

(N.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HARTZ, BALDOCK, and CARSON, Circuit Judges. 

_________________________________ 

Defendant is in custody for violating federal gun laws. To remedy his situation, 

Defendant filed a pro se motion to vacate, set aside, or correct his sentence under 28 

U.S.C. § 2255 – which the district court denied. The district court declined to issue a 

certificate of appealability. Defendant now seeks a certificate of appealability from this 

Court. 

To obtain a certificate of appealability, a defendant must show 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 

*

 This order is not binding precedent except under the doctrines of law of the case, 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

October 14, 2020

Christopher M. Wolpert 

Clerk of Court
2 

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the following reasons, we 

decline to issue a certificate of appealability and dismiss this appeal. 28 U.S.C. 

§ 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). 

A special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives 

swore to a criminal complaint and attached an affidavit alleging the following facts. Two 

Tulsa, Oklahoma police officers noticed a vehicle with its license plate partially 

obstructed from view and initiated a traffic stop. Defendant consented to the officers’ 

request to search the vehicle. During the search, the officers found a loaded Taurus 9mm 

pistol. One of the officers read Defendant his Miranda rights. During the conversation 

that followed, Defendant told the officers that (1) he owned the items in the car, (2) he 

knew he was a felon, and (3) he knew he was not supposed to have a gun. A grand jury 

returned an indictment alleging that Defendant possessed a firearm and ammunition in 

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 

Defendant pleaded guilty to the charged offenses and the district court sentenced 

him. Defendant then filed a § 2255 motion claiming his counsel provided ineffective 

assistance by advising him to accept a plea agreement. The district court denied his 

motion. 

To prevail on his ineffective assistance of counsel claim, Defendant must show 

that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel’ 

guaranteed by the Sixth Amendment” and (2) “counsel’s errors were so serious as to 

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The “proper standard for attorney performance is 
3 

that of reasonably effective assistance,” under “prevailing professional norms” in the 

legal profession. Id. at 687–88. So, “a guilty plea cannot be attacked as based on 

inadequate legal advice unless counsel was not ‘a reasonably competent attorney’ and the 

advice was not ‘within the range of competence demanded of attorneys in criminal 

cases.’” Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770, 771 (1970)). 

Defendant raises two potential bases in support of his claim that counsel’s 

assistance fell below the constitutional minimum. First, he claims that his counsel failed 

to raise Rehaif v. United States, 139 S. Ct. 2191 (2019). And second, he claims counsel 

advised him to enter a plea of guilty to a charge that the government could not prove at 

trial.1

Defendant’s argument based upon counsel’s failure to raise Rehaif lacks merit. 

Defendant pleaded guilty in October 2018, and the court entered judgment in February 

2019. The Supreme Court decided Rehaif in June 2019, eight months after the guilty 

plea and four months after the judgment. A failure “to predict future law” is not 

ineffective assistance of counsel. Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 

2002). For that reason, Defendant cannot show the denial of a constitutional right or that 

reasonable jurists could debate whether the district court properly resolved the petition as 

to this argument. 28 U.S.C. § 2253(c); Slack, 529 U.S. at 484. 

1

 The district court construed the motion to include an argument that counsel 

coerced Defendant to enter the plea. Defendant, however, does not develop the issue on 

appeal. Thus, we do not reach it. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 

2011). 
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Defendant next argues that, given Rehaif, the government could not prove its case 

at trial and yet, his counsel advised him to plead guilty. In Rehaif, the Supreme Court 

held that prosecution under either 18 U.S.C. § 922(g) or 924(a)(2) requires the 

government to “prove both that the defendant knew he possessed a firearm and that he 

knew he belonged to the relevant category of persons barred from possessing a firearm.” 

139 S. Ct. at 2200. Defendant argues that he “did not admit at the time of his arrest that 

he was a felon who was not permitted to possess the firearm found in his truck.” And, he 

contends “the government cannot provide any evidence to the contrary.” 

As discussed above, the Supreme Court decided Rehaif after the district court 

entered its judgment. Before Rehaif, every circuit that addressed the question, including 

this one, held the government did not need to prove a defendant’s knowledge of his 

status. Rehaif, 139 S. Ct. at 2210 n.6 (Alito, J., dissenting); United States v. GamesPerez, 667 F.3d 1136, 1141–42 (10th Cir. 2012). Thus, even if counsel had raised 

Defendant’s knowledge, the theory would have failed under then-existing law. And the 

failure to raise a meritless issue is not ineffective assistance of counsel. Sperry v. 

McKune, 445 F.3d 1268, 1275 (10th Cir. 2006). As above, we conclude Defendant failed 

to show the denial of a constitutional right or that the district court’s resolution of his 

motion is debatable. 28 U.S.C. § 2253(c); Slack, 529 U.S. at 484. 

Because we conclude that Defendant’s counsel was not ineffective, we need not 

address Strickland’s second prong. United States v. Hollis, 552 F.3d 1191, 1194 (10th 

Cir. 2009). For the reasons discussed above, we DENY Defendant’s request for a 
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certificate of appealability and DISMISS this appeal. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge