UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JAMES WESLEY BARNES, 

 Defendant - Appellant. 

No. 20-5081 

(D.C. No. 4:20-CV-00284-CVE-FHM & 

4:18-CR-00154-CVE-1) 

(N.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

James Barnes, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 

motion. We deny a COA and dismiss the appeal. 

I

Barnes was indicted for sexual exploitation of a child and possession of 

methamphetamine with intent to distribute. He was later charged in a new information 

with possession of child pornography after coercing a minor to send him nude 

photographs over Facebook messenger in exchange for money. Barnes pleaded guilty to 

*

 This order is not binding precedent except under the doctrines of law of the case, 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 16, 2020

Christopher M. Wolpert 

Clerk of Court
-2- 

the one-count information and was sentenced to 180 months imprisonment per the 

parties’ stipulation. Over a year after his judgment of conviction became final, he filed a 

28 U.S.C. § 2255 motion arguing that his counsel was ineffective for failing to object to 

sentencing enhancements and that there was no evidence that the child pornography was 

sent “using any means or facility of interstate commerce.” 18 U.S.C. § 2252(a)(4)(B). 

The government moved to dismiss the motion as untimely. The district court granted the 

government’s motion and denied a COA. Barnes now seeks a COA from this court. 

II 

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

COA. 28 U.S.C. § 2253(c)(1)(B). If a district court dismisses a § 2255 motion on 

procedural grounds, we can only issue a COA if “jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right, and [] 

jurists of reason would find it debatable whether the district court was correct in its 

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

We do not consider whether Barnes’ procedural claims are debatable because his 

substantive claims lack merit. Barnes first argues that his counsel was ineffective 

because she (1) failed to object to the district court’s alleged imposition of a sentencing 

enhancement based on a prior assault conviction, and (2) failed to argue that the district 

court’s sentence violated his plea agreement. To prevail on an ineffective assistance of 

counsel claim, the movant must demonstrate “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. 
-3- 

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. Barnes’ arguments that 

his counsel was ineffective are contradicted by the record. The district court did not 

enhance his sentence based on a prior assault conviction, nor did it violate the terms of 

Barnes’ plea agreement. Rather, it imposed the 180-month sentence that the parties 

stipulated to after the government agreed to dismiss more serious offenses. Barnes’ 

counsel did not err in failing to object to the court imposing the stipulated sentence, nor 

can Barnes show that he was prejudiced by receiving the sentence to which he agreed. 

Accordingly, his counsel was not ineffective. 

Barnes argues that his guilty plea lacked a sufficient factual predicate to support 

the interstate element of the possession of child pornography charge. He reasons that 

because the illicit images he received were not sent across state lines, they were not sent 

“using any means or facility of interstate commerce.” 18 U.S.C. § 2252(a)(4)(B). 

Although Barnes’ arguments may have had merit under prior versions of the relevant 

statute, see United States v. Schaefer, 501 F.3d 1197, 1198 (10th Cir. 2007), Congress 

amended the statute in 2008 to change the jurisdictional requirement. We have held that 

the version of the statute under which Barnes was convicted applies whenever the images 

are sent using a means of interstate commerce, and “the internet is generally an 

instrument of interstate commerce.” United States v. Baum, 542 F. App’x 724, 727 (10th 
-4- 

Cir. 2013) (unpublished) (quotation omitted).1

 Because Barnes received the images via 

Facebook messenger, an instrument of interstate commerce, there was a sufficient factual 

predicate to support his guilty plea.2

III 

We DENY a COA and DISMISS the appeal.

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

1

 We may cite an unpublished opinion for its persuasive value consistent with Fed. 

R. App. P. 32.1 and 10th Cir. R. 32.1. 

2

 Barnes additionally argues for the first time on appeal that the district court was 

openly biased against him, and his counsel was ineffective for failing to discover the bias 

before advising Barnes to accept the plea agreement. These conclusory assertions are not 

supported by the record, nor does Barnes provide any evidence in support of them. 

Contrary to Barnes’ assertions, the district court did not show bias by declining a 

downward departure from the sentence Barnes stipulated to, nor did the judge impose a 

longer sentence than the parties agreed to. Because there is no evidence of judicial bias, 

the argument fails.