UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SAMMY JOE PERRYMAN, 

 Defendant - Appellant. 

No. 16-5141 

(D.C. Nos. 4:15-CV-00237-CVE-PJC and 

4:11-CR-00100-CVE-1) 

(N.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

 Sammy Perryman, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (“COA”) to challenge the dismissal of his 28 U.S.C. § 2255 motion. We 

deny a COA and dismiss the appeal. 

I 

 Perryman pled guilty to bankruptcy fraud and money laundering, after which a 

jury convicted him of arson, mail fraud, and using fire and explosives to commit a felony. 

These charges arose primarily out of Perryman’s attempt to burn down a health club he 

owned in order to collect the insurance proceeds. He was sentenced to 180 months’ 

imprisonment, and we affirmed his convictions on direct appeal. United States v. 

 *

 This order is not binding precedent, except under the doctrines of law of the 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 6, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

Perryman, 558 F. App’x 795 (10th Cir. 2014) (unpublished). Perryman subsequently 

filed a § 2255 motion alleging ineffective assistance of counsel. The district court denied 

relief and declined to issue a COA. Perryman now seeks a COA from this court. 

II 

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

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

showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard, 

Perryman must demonstrate “that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different manner or 

that the issues presented were adequate to deserve encouragement to proceed 

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). 

To succeed on an ineffective assistance of counsel claim, a prisoner must 

establish 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. “Strategic or tactical decisions 

on the part of counsel are presumed correct, unless they were completely 

unreasonable, not merely wrong, so that they bear no relationship to a possible 

defense strategy.” Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001) (quotation, 

citation, and alteration omitted). 
3 

In his first claim for relief, Perryman asserts that defense counsel was 

ineffective for failing to introduce trial testimony and a report from an expert 

witness, Dr. David Lilley, on the timing of the fire at the health club. Because 

Perryman left his club at approximately 6:00 p.m. and the fire was not reported until 

close to midnight, defense counsel had planned to argue that someone else must have 

set the fire later that night. After learning of this strategy, the government solicited 

an expert report from Lee McCarthy, which concluded that the fire could have been 

set at 6:00 p.m. and smoldered for six hours. The district court granted defense 

counsel’s motion in limine to exclude McCarthy’s report and testimony as not timely 

disclosed. However, the court explained that if the defense introduced testimony 

suggesting the fire could not have smoldered for six hours, the government would be 

allowed to introduce McCarthy’s opinions as rebuttal evidence. After this ruling, 

defense counsel retained Dr. Lilley as an expert witness but ultimately decided not to 

present his report and testimony at trial. This, in turn, prevented the introduction of 

McCarthy’s report and testimony. 

 We agree with the district court that Perryman’s claim regarding Dr. Lilley 

fails. In an affidavit submitted to the court, defense counsel states that he made the 

strategic decision not to call Dr. Lilley because he believed the benefit of Dr. Lilley’s 

testimony would be outweighed by the harm of McCarthy’s. This decision was not 

“completely unreasonable.” Moore, 254 F.3d at 1239 (quotation omitted). 

Perryman also argues that trial counsel was ineffective for failing to introduce 

payroll records to undermine a government witness’ testimony against him. A 
4 

former health club employee testified at trial that prior to the fire Perryman asked to 

borrow money from him, and then reduced his pay when he refused. Even assuming 

counsel was ineffective for failing to obtain records that would have undermined this 

testimony,1

 Perryman cannot establish prejudice. Given the government’s substantial 

evidence of Perryman’s financial problems, there is no reasonable probability that 

rebutting this testimony would have affected the outcome of the trial. See Perryman, 

558 F. App’x at 800 (“[T]he government’s circumstantial case was extremely 

powerful.”). 

Finally, Perryman argues that counsel was ineffective, and his Sixth 

Amendment right to confront witnesses was violated, because counsel failed to 

subpoena the authors of the studies relied upon in McCarthy’s expert report. The 

district court correctly concluded this argument is meritless: McCarthy’s report was 

never introduced at trial, thus there could not have been any violation of the 

Confrontation Clause. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 

(2009) (the Confrontation Clause guarantees “a defendant’s right to confront those 

who bear testimony against him” (quotation omitted)). We similarly reject any 

suggestion by Perryman that his counsel was ineffective for failing to introduce 

McCarthy’s report in order to cross-examine him. 

 1

 Perryman has not provided any evidence, beyond his conclusory assertions, 

that the relevant payroll records exist. 
5 

III 

For the foregoing reasons we DENY a COA and DISMISS the appeal. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge