UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DAEDERICK CADELL LACY, 

 Defendant - Appellant. 

No. 23-3133 

(D.C. Nos. 6:20-CV-01267-EFM & 

6:16-CR-10009-EFM-1) 

(D. Kan.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. 

_________________________________ 

Defendant-Appellant Daederick Lacy, an inmate appearing through counsel, seeks 

a certificate of appealability (COA) to appeal from the denial of his 28 U.S.C. § 2255 

motion based on ineffective assistance of trial counsel. Without a COA, we lack 

jurisdiction to consider the merits of Mr. Lacy’s claims. 28 U.S.C § 2253(c)(1)(B). We 

deny a COA and dismiss the appeal. 

Background 

Mr. Lacy was convicted of the following counts (1) sex trafficking of a child, 

18 U.S.C. § 1591(a)(1), (2); sex trafficking accomplished by force, fraud, or coercion, 

*

 This order is not binding precedent except under the doctrines of law of the case, 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

January 10, 2024

Christopher M. Wolpert 

Clerk of Court

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18 U.S.C. § 1591(a)(1), and (3) transportation of a minor with intent to engage in 

criminal sexual activity, 18 U.S.C. § 2423(a). He was sentenced to 293 months’ 

imprisonment on each count to run concurrently, and five years’ supervised release on 

each count, again to run concurrently. His convictions and sentence were affirmed on 

direct appeal. United States v. Lacy, 904 F.3d 889 (10th Cir. 2018). 

Mr. Lacy then filed his § 2255 motion. The district court appointed counsel, held 

an evidentiary hearing, and denied relief. United States v. Lacy, No. 6:20-CV-01267-

EFM, 2023 WL 4234611, at *1 (D. Kan. June 28, 2023). To obtain a COA, Mr. Lacy 

must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). Here, the district court denied the constitutional claims on the merits rather 

than on procedural grounds, so Mr. Lacy must show “that reasonable jurists would find 

the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). 

The parties are familiar with the facts, so we need not restate them here. Briefly, 

the case centered on Mr. Lacy’s commercial sex activities with three teen-aged women: a 

19-year-old (S.G.) in count 2, a 16-year-old (B.J) in count 1, and a 17-year-old (S.B.) in 

count 3. B.J. and S.G. testified at trial. B.J. provided highly incriminating testimony 

about Mr. Lacy, his relationship with her, as well as the other young women. 3 R 

(17-3119) 312–13. She testified that he took pictures of her to post on the website 

Backpage, used fake names, made arrangements with the “calls”, provided her with 

condoms, and took all of the money from the sex acts, aware of her age. Id. at 314–17. 

She also testified that S.B. “pretty much had the same relationship” with Mr. Lacy 

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including providing commercial sex acts. Lacy, 904 F.3d at 898 (alteration omitted). We 

mention other operative facts as necessary to discuss the claims. 

Discussion 

Given an evidentiary hearing, the district court’s findings of fact are reviewed for 

clear error and its conclusions of law are reviewed de novo. United States v. OrdunoRamirez, 61 F.4th 1263, 1272 (10th Cir. 2023). Ineffective assistance of counsel claims 

often involve mixed questions of law and fact but ultimately are reviewed de novo. 

United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). 

Ineffective assistance of counsel claims require a showing of deficient 

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Deficient performance means “that counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. 

Prejudice requires a showing “that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” Id. 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. A court may address an 

ineffective assistance claim in any order and need not consider both elements if one is not 

met. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice, which we expect will often be so, that course should be 

followed.” Id. 

Mr. Lacy contends that his trial counsel rendered deficient performance as 

follows: (1) an extremely brief opening statement; (2) lodging no objections to any 

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testimony, particularly to that of S.G. and Officer Nagy, who recounted what S.G. told 

him; (3) failing to object on authentication grounds to a trial exhibit (a Backpage ad 

depicting S.G. on an internet website); (4) failing to interview the alleged victims; and 

(5) failing to cross-examine S.G. concerning prior acts of prostitution. Aplt. Br. and 

Request for a COA at 7–19. We do not think that the district court’s findings concerning 

the lack of deficient performance are reasonably debatable as to items (1), (3), and (4). 

Regarding item (1), given that opening statements are entirely optional, trial 

counsel’s brief opening statement essentially told the jury that the government could not 

prove its case — a permissible approach. Mr. Lacy faults trial counsel for not providing 

the jury with the defendant’s theory of the case. He attributes this to a failure to properly 

investigate the case and develop the evidence. Trial counsel explained that he did not 

know how the victims would testify (particularly in light of Mr. Lacy’s claim that they 

would not attend or would testify in his favor) and did not want to say something he 

could not support. 1 R. 1141. This tactical choice falls within the wide range of 

professional judgment, particularly given that waiver of an opening statement does not 

alone constitute ineffective assistance. See United States v. Summers, 539 F. App’x. 

877, 879 (10th Cir. 2013); Clayton v. Gibson, 199 F.3d 1162, 1178 (10th Cir. 1999). 

Insofar as item (3), Mr. Lacy contends that the Backpage ad was not properly 

authenticated through S.G. S.G. testified that she had seen the pictures in the ad before 

and twice identified herself. Thereafter, when asked whether those were the pictures that 

were posted online, she explained “Honestly, I still don’t know what was posted online.” 

1 R. 397. Trial counsel did not object. The district court viewed the lack of objection as 

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tactical, not wanting to draw attention to the ad, and indicated that it probably would have 

come in through other witnesses. The government maintained that it would have come in 

through Detective Huhman, ECF No. 77, 2 Trial. Tr. at 177–78, or Detective Klump, 

ECF No. 78, 3 Trial Tr. at 99, as they were involved in obtaining it. 1 R. 1628.1

 

Although Mr. Lacy contends that this is speculative, the Backpage ads were a central part 

of the prostitution operation. We do not think that the district court’s conclusion of no 

deficient performance, under the circumstances, is reasonably debatable. 

Finally, as to item (4), failure to interview the alleged victims, trial counsel 

testified that he expected the victims to appear despite Mr. Lacy’s belief to the contrary. 

1 R. 1135. Trial counsel attempted to track one of the victims down but was unable to 

locate her, and he already had their phone records, statements, and interviews. Id. Trial 

counsel confirmed that he had no need to clarify the statements and recounted the risks of 

interviewing these witnesses. Id. at 1199–07. These included generating unequivocal, 

consistent statements implicating the defendant, fomenting dislike for the defendant, and 

the potential for the interview to be viewed as harassment. Id. at 1199-1200. Under the 

circumstances and deferring to counsel’s judgment concerning the risks, we do not think 

that the district court’s decision is reasonably debatable, rather it is in line with the 

deference accorded to counsel’s reasonable strategic choices. 

1

 Of course, the purpose of authentication is to show that an item of evidence is 

what the proponent claims it to be. Fed. R. Evid. 901. We have noted that this is not a 

high bar, and even after authentication, a defendant is free to argue that the evidence is 

not reliable or not material — such arguments go to its weight, not its admissibility. 

United States v. Isabella, 918 F.3d 816, 843–44 (10th Cir. 2019); see also Taylor v. 

Sullivan, No. 2:18-cv-0637-MCE, 2019 WL 1923193, at *8 (E.D. Cal. Apr. 30, 2019). 

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For items (2) and (5), failure to object and failure to cross-examine, we turn to 

prejudice. The district court’s conclusion that Mr. Lacy cannot show prejudice is not 

reasonably debatable. At the heart of this claim, Mr. Lacy maintains that S.G. gave 

equivocal testimony on the element of force or coercion, saying only that “she didn’t feel 

safe, she felt belittled, and she felt like a child” that was bolstered by the inadmissible 

hearsay of Officer Nagy. Aplt. Br. and Request for a COA at 9–12. According to Mr. 

Lacy, trial counsel’s failure to object to Officer Nagy’s testimony was prejudicial. Aplt. 

Br. and Request for a COA at 9. But trial counsel did pursue this line of defense by 

undermining Officer Nagy’s testimony during cross-examination. 1 R. 548–553. And 

when S.G. was asked why she did not alert a hotel desk clerk to her situation and request 

that the clerk call the police, far from equivocating, she testified: 

Why would I -- why would I go tell someone I’m being held against my will? 

If I’m being held against my will, I’m more concerned about my safety, I’m 

more concerned about me trying to live than me trying to go tell somebody 

my issues, because I don’t even know -- like I just know that at that time I 

didn’t felt [sic] in control, I just didn’t even feel safe. So -- and [Mr. Lacy’s] 

a guy. A guy has more control over women. And at that time, that’s what I 

felt. So I’m not going to go out of line because I don’t know him. I don’t 

know if he has a gun. I don’t know him. I’m not gonna put my life in 

jeopardy . . . . 

1 R. 431. Moreover, we considered a similar argument about the hearsay testimony of 

Officer Nagy (and another officer) in Mr. Lacy’s direct appeal and rejected it. See Lacy, 

904 F.3d at 894–896. We concluded that Mr. Lacy could not show a reasonable 

probability that, but for the testimony, he would not have been convicted. Id. at 896. 

Although Mr. Lacy argues that S.G. merely testified as to a loss of control and that trial 

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counsel did not adequately test her credibility, the record is otherwise and contains strong 

incriminating evidence. 

Regarding trial counsel’s failure to cross-examine S.G. about alleged prior acts of 

prostitution, the district court’s conclusion is not reasonably debatable. According to Mr. 

Lacy, such evidence would have been relevant (a) to dispel an inference that S.G. would 

have only engaged in the sexual conduct here if forced or coerced and (b) to counter 

S.G.’s direct testimony suggesting she was a moral person. The district court noted a 

post-trial decision explaining that “[e]vidence that a sex trafficking victim previously 

engaged in prostitution is irrelevant to whether that victim was coerced into working as a 

prostitute at a later date.” United States v. Palms, 21 F.4th 689, 703 (10th Cir. 2021). 

Although Mr. Lacy argues that at the time of his 2017 trial, the law was unsettled, we 

agree with the district court that several circuits had already so held and note that it is 

extremely doubtful that a trial court would let such evidence in. 

Finally, Mr. Lacy argues cumulative error insofar as urging us to discount the 

rejection of his hearsay claim on direct appeal and instead aggregate all the alleged errors 

of trial counsel. Aplt. Br. and Request for a COA at 24–25. The district court rejected 

this claim, finding that it was not raised and was inapplicable for lack of any error. “A 

cumulative-error analysis aggregates all errors found to be harmless and analyzes 

whether their cumulative effect on the outcome of the trial is such that collectively they 

can no longer be determined to be harmless.” Cargle v. Mullin, 317 F.3d 1196, 1206 

(10th Cir. 2003) (quoting United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002)). 

We aggregate any prejudice from ineffective assistance of counsel even when such 

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claims are dismissed for lack of prejudice under Strickland. Harmon v. Sharp, 936 F.3d 

1044, 1083 (10th Cir. 2019). Considering claims 2 and 5 collectively (which are easily 

resolved on lack of prejudice), Mr. Lacy falls far short of demonstrating a reasonable 

probability that the result of his trial would have been different, and rejection of the claim 

is not reasonably debatable. 

We DENY a COA and DISMISS the appeal. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

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