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.) 

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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before GORSUCH, McKAY, and BACHARACH, Circuit Judges. 

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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 custodial portion of his sentences for 

several previous convictions and was placed on supervised release. The terms of his 

supervised release included random drug testing and participation in outpatient 

counselling. In 2013, the government filed a petition to revoke Defendant’s 

supervised release after numerous urine samples provided by Defendant tested 

 *

 This order is not binding precedent, except under the doctrines of law of the 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

September 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

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 counsel stipulated the court could find 

by a preponderance of the evidence that the 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 contended his counsel was ineffective. The 

district court analyzed this claim under the two-part test established in Strickland v. 

Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must show (1) “that 

counsel’s performance was deficient” and (2) “that the deficient 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 reasonably decided to stipulate to 

violations rather than futilely contest them and Defendant had not demonstrated 

another course of action would have produced a different result. The district court 

also rejected Defendant’s general objections 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 supervised release by 
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committing the charged state drug crimes because Defendant failed to adequately 

support that claim and, regardless, the court had ample evidence that Defendant 

violated his release conditions even without considering the state criminal 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 resolution of this claim. See Slack v. McDaniel, 529 U.S. 473, 484 

(2000). Therefore, for substantially the same reasons given by the district court in its 

thorough and well-reasoned 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