UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MERVIN EDY WOLF, 

Defendant - Appellant. 

No. 16-1075 

(D.C. Nos. 1:15-CV-01948-RM and 

1:14-CR-00107-RM-1) 

(D. Colorado) 

ORDER DENYING 

CERTIFICATE OF APPEALABILITY*

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges. 

Petitioner-Appellant Mervin Edy Wolf, a federal prisoner proceeding pro se, seeks 

a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1)(B) to appeal the district 

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2255. Because 

he is proceeding pro se, we construe Mr. Wolf’s filings liberally, see Hall v. Bellmon, 935 

F.2d 1106, 1110 (10th Cir. 1991), but “our role is not to act as his advocate,” Gallagher 

 

*

This order is not binding precedent, except under the doctrines of law of 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

May 24, 2016

Elisabeth A. Shumaker 

Clerk of Court
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v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Before filing his § 2255 petition, 

Mr. Wolf entered a guilty plea in the United States District Court for the District of 

Colorado to three of the four counts in his indictment. 

After the court imposed a sentence of 720 months, Mr. Wolf filed a motion under 

§ 2255 in the district court, claiming he accepted the plea as a result of ineffective 

assistance of counsel. In denying Mr. Wolf’s petition, the district court concluded Mr. 

Wolf had failed to demonstrate that his counsel’s performance was deficient and that his 

counsel’s alleged errors prejudiced him to the extent that he would not have entered a 

plea and instead opted for trial. 

Mr. Wolf has now filed a combined merits brief and application for a COA in this 

court. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. 

Wolf’s application for a COA and dismiss his appeal. As the district court correctly 

noted, Mr. Wolf’s failure to demonstrate prejudice is fatal to his request for a COA. 

I. BACKGROUND 

In January 2014, Minor #1, a fourteen-year-old child living in California, 

disclosed to her family and to law enforcement that Mr. Wolf had been molesting her 

since 2007, when she was seven years old. She further detailed the nature of his sexual 

abuse, stating that he had filmed and photographed the incidents. On March 5, 2014, 

Minor #1 called Mr. Wolf (at the direction of law enforcement), and during their recorded 

conversation Mr. Wolf confirmed that he had a sexual relationship with the victim and 

that he had recorded the abuse. 
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On the same day, a federal search warrant was executed at Mr. Wolf’s home in 

Colorado. Upon being confronted with the allegations of abuse, and after being advised 

of his Miranda rights, Mr. Wolf admitted to traveling from Colorado to California to 

commit the abuse and to videotaping and photographing the incidents. Authorities 

recovered a number of devices containing evidence of the abuse, including computers 

and cameras. Several weeks later, a four-count indictment was entered against Mr. Wolf, 

who at the time was sixty-two years old. 

Count One of the indictment, which carried a sentence of not less than thirty years 

and not more than life, charged Mr. Wolf with crossing a state line with the intent to 

engage in a sexual act with a person under the age of twelve, in violation of 18 U.S.C. 

§ 2241(c). Counts Two through Four, which each carried a sentence of not less than 

fifteen years’ and not more than thirty years’ imprisonment, charged Mr. Wolf with 

enticing a minor to engage in sexually explicit conduct for the purpose of producing a 

visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a). In total, Mr. Wolf 

faced a potential sentence of 120 years in prison. 

Several months later, Mr. Wolf pled guilty to Counts Two, Three, and Four of the 

Indictment. In exchange for Mr. Wolf’s agreement to waive a venue challenge, the 

United States agreed to dismiss Count One of the Indictment. Under the terms of the plea 

agreement, Mr. Wolf also waived his right to appeal under the condition that he was 

permitted to raise the “claim that [he] was denied the effective assistance of counsel.” 

Mr. Wolf was also permitted to seek a minimum sentence of fifteen years’ imprisonment, 
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recognizing that the United States would seek the maximum sentence allowable of ninety 

years’ imprisonment. Mr. Wolf was ultimately sentenced to sixty years (720 months) in 

prison. Consistent with his waiver, he did not file an appeal. 

In March 2016, Mr. Wolf filed a challenge to his plea under § 2255, claiming he 

entered the plea as a result of the ineffective assistance of counsel. He raised six claims in 

his petition, arguing that counsel failed to: (1) challenge the constitutionality of the 

statute under which he was charged—18 U.S.C. § 2251(a)—because the statute allegedly 

violates the Tenth Amendment; (2) challenge the lack of a nexus between Mr. Wolf’s 

actions and interstate commerce, thereby depriving him of his right to due process; (3) 

raise a venue challenge, since the alleged conduct occurred in California, rather than 

Colorado; (4) move to suppress evidence obtained from Mr. Wolf’s home, given the 

alleged lack of a search warrant; (5) move to suppress statements Mr. Wolf made during 

the recorded conversation with Minor #1, as Minor #1 was allegedly acting as an agent of 

the government, and (6) recognize the government’s failure of proof, since the indictment 

was written in the conjunctive, therefore requiring proof of all elements in the aggregate. 

In ruling on Mr. Wolf’s petition, the district court discussed each of these claims, 

ultimately concluding that they lacked merit and that Mr. Wolf’s counsel did not provide 

deficient performance. The district court further rejected Mr. Wolf’s suggestion that he 

was coerced into his plea as unsubstantiated, noting that the plea agreement and the 

proceedings at the change of plea hearing fully supported the voluntary nature of his plea. 

Finally, the district court concluded that even assuming counsel’s performance was 
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deficient, Mr. Wolf had failed to establish prejudice. Accordingly, the district court 

denied Mr. Wolf’s petition and concluded no evidentiary hearing was warranted. A final 

judgment against Mr. Wolf was entered three days later. 

II. DISCUSSION 

We conclude that Mr. Wolf has failed to make a substantial showing of the denial 

of a constitutional right and therefore deny his request for a COA. A federal prisoner 

must obtain a COA as a jurisdictional prerequisite to challenge a federal district court’s 

denial of habeas corpus relief. 28 U.S.C. § 2253(c)(1)(B); United States v. Harper, 545 

F.3d 1230, 1233–34 (10th Cir. 2008). And we will issue a COA “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). This requires a habeas petitioner to “show[] 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) (internal quotation marks 

omitted). 

Where, as here, a petitioner has entered a guilty plea, he may obtain a COA to 

challenge the plea on the basis of ineffective assistance of counsel only where the 

challenge relates to the validity of the plea (i.e. whether it was entered voluntarily and 

knowingly)—not on the basis of “[a] miscalculation or erroneous sentence estimation by 

defense counsel.” United States v. Parker, 720 F.3d 781, 787 n.9 (10th Cir. 2013) 

(internal quotation marks omitted). In reviewing such a challenge, we use the two-part 
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test announced in Strickland v. Washington, 466 U.S. 668 (1984), under which “the 

defendant must show that his counsel’s performance ‘fell below an objective standard of 

reasonableness,’ and that the deficient performance resulted in prejudice.” United States 

v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993) (citation omitted) (quoting Strickland, 466 

U.S. at 688). “In the context of a guilty plea, this requires defendant to show that 

counsel’s deficient performance affected the outcome of the plea process and that there is 

a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty 

and would have insisted on going to trial.” United States v. Clingman, 288 F.3d 1183, 

1186 (10th Cir. 2002) (internal quotation marks and emphases omitted); see also United 

States v. Viera, 674 F.3d 1214, 1219–20 (10th Cir. 2012) (denying COA where the 

defendant failed to “show[] that, absent counsel’s alleged failure to advise him that he 

would be deported, he would have gone to trial”). 

For Mr. Wolf to demonstrate prejudice on his ineffective assistance of counsel 

claims, he was accordingly required to establish that the alleged errors of counsel 

“affected the outcome of the plea process and that there is a reasonable probability that, 

but for counsel’s errors, he would not have pleaded guilty and would have insisted on 

going to trial.” Clingman, 288 F.3d at 1186 (internal quotation marks and emphases 

omitted). Mr. Wolf failed to make this showing before the district court, and he likewise 

fails to make this showing in requesting a COA from this court on appeal. 

On most of his claims, as the district court acknowledged, Mr. Wolf “is silent as to 

whether he would have proceeded to trial.” On his Tenth Amendment and suppression 
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claims, he suggests only that a plea under alternative circumstances would have been 

more favorable. For instance, had counsel prevailed in raising a Tenth Amendment claim, 

Mr. Wolf suggests the alternative state charges “would have carried a significantly lesser 

sentence” than the federal charges he faced under 18 U.S.C. § 2251. He further argues 

that suppression of the phone call “could have resulted in Counsel negotiating a far more 

favorable plea deal” and that “the United States would have been unable to prosecute” his 

case had counsel moved to suppress his statements to law enforcement. Not only are his 

Tenth Amendment and suppression arguments legally unsound—as the district court 

accurately explained—but in claiming that the plea arrangement may have been more 

favorable, Mr. Wolf fails to carry his burden of demonstrating that, absent counsel’s 

alleged errors, he would have instead opted for trial. Indeed, the overwhelming nature of 

the evidence against Mr. Wolf suggests the opposite. 

This same conclusion applies to Mr. Wolf’s venue challenge. In claiming that 

venue in Colorado was improper—an argument he waived in exchange for the 

government’s agreement to drop Count One in the indictment—he argues incorrectly that 

“prejudice is presumed.” In his briefing before this court, Mr. Wolf adds that the 

exchange was of no benefit—that even though the government “dismiss[ed] a count with 

a 30 year mandatory sentence” in exchange for waiving the venue challenge, “he ended 

up receiving a 60 year sentence.” But Mr. Wolf fails to acknowledge that absent this 

exchange, he very well may have received the additional thirty-year sentence and been 

imprisoned for ninety years instead of sixty. And irrespective of his perception of the 
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ultimate benefit of dropping Count One, Mr. Wolf advances no argument that, but for 

counsel’s deficient performance, he would have rejected the plea deal and proceeded to 

trial. Accordingly, his claim of prejudice here, as above, does not suffice. 

As a final matter, the district court properly concluded that no evidentiary hearing 

was warranted. “District courts are entitled to some latitude with regard to evidentiary 

hearings, and the standard is higher than notice pleading.” United States v. Cervini, 379 

F.3d 987, 994 (10th Cir. 2004). “District courts are not required to hold evidentiary 

hearings in collateral attacks without a firm idea of what the testimony will encompass 

and how it will support a movant’s claim.” Id. We review the district court’s decision not 

to conduct an evidentiary hearing on a collateral attack for an abuse of discretion. 

Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 861 (10th Cir. 2005). Given the conclusory 

and unsubstantiated nature of the allegations in Mr. Wolf’s petition, the district court did 

not abuse its discretion in concluding no evidentiary hearing was warranted. 

III. CONCLUSION 

Because Mr. Wolf has failed to make a “substantial showing of the denial of a 

constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his request for a COA and 

DISMISS this appeal. 

ENTERED FOR THE COURT 

Carolyn B. McHugh 

Circuit Judge