UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TOMMY BLAKE McCARY, Defendant - Appellant. No. 15-7035 (D.C. Nos. 6:13-CV-00493-RAW and 6:11-CR-00025-RAW-1) (E.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before GORSUCH , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ Defendant Blake McCary, a federal prisoner proceeding pro se, seeks a certificate of appealability to appeal the district court’s denial of his § 2255 habeas petition. In 2009, Defendant completed the cu stodial portion of his sentences for several previous convictions and was placed on supervised release. The terms of his supervised release included random drug te sting and participation in outpatient counselling. In 2013, the government fi led a petition to revoke Defendant’s supervised release after numerous urine samples provided by Defendant tested

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### September 15, 2015
Elisabeth A. Shumaker Clerk of Court2 positive for methamphetamines and Defendant was charged in Oklahoma state court with possession of drug paraphernalia and other prohibited items. During the revocation hearing, defense c ounsel stipulated the court could find by a preponderance of the evidence that th e alleged violations had taken place. Defendant declined to speak and the court found, by a preponderance of the evidence, that Defendant violated his conditions of supervised release. The court sentenced Defendant to forty-eight months’ imprisonment. In his § 2255 motion, Defendant contende d his counsel was ineffective. The district court analyzed th is claim under the two-pa rt test established in Strickland v. Washington , 466 U.S. 668 (1984). Under Strickland , a petitioner must show (1) “that counsel’s performance was de ficient” and (2) “that the deficien t performance prejudiced the defendant.” Id. at 687. The court found that Defendant made an insufficient showing as to both parts of the Strickland test because defense counsel reas onably decided to stipulate to violations rather than fu tilely contest them and Defe ndant had not demonstrated another course of action woul d have produced a different re sult. The district court also rejected Defendant’s general objecti ons to the preponderance-of-the-evidence standard used in his supervised release revocation hearing based on this circuit’s holding that such hearings do not entitle a defendant to a jury proceeding or to the beyond-a-reasonable-doubt standard used in criminal trials. See United States v. Cordova , 461 F.3d 1184, 1186-88 (10th Cir. 2006). Finally, the court rejected Defendant’s claim of “actual innocence” of violating his supe rvised release by3 committing the charged state drug crimes because Defendant failed to adequately support that claim and, re gardless, the court had ampl e evidence that Defendant violated his release conditions even without considering the state cr iminal charges. After thoroughly reviewing Defendant’s arguments and the record on appeal, we are persuaded that reasonable jurists would not debate the correctness of the district court’s resolu tion of this claim. See Slack v. McDaniel , 529 U.S. 473, 484 (2000). Therefore, for substa ntially the same reasons given by the district court in its thorough and well-re asoned opinion, we DENY Defendant’s request for a certificate of appealability and DISMISS the appeal. We GRANT Appellant’s motion to proceed in forma pauperis on appeal.

Entered for the Court
Monroe G. McKay Circuit Judge