Nos. 2:17-CV-00047-NDF and 2:13-CR-00099-NDF-1 (D. Wyo.)
LUCERO, HARTZ, and McHUGH, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge.
Justin Sadler assaulted his former girlfriend while
possessing a firearm. See United States v. Sadler,
642 Fed.Appx. 834, 835-36 (10th Cir. 2016). Wyoming
authorities charged him with first-degree sexual assault,
kidnapping, and aggravated assault. See Sadler v.
State, 375 P.3d 728, 729 (Wyo. 2016). Before being tried
on the state charges, Defendant was convicted in federal
court of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
See Sadler, 642 Fed.Appx. at 835. He was sentenced
to 120 months' imprisonment for his federal offense, and
we affirmed the validity of his sentence on direct appeal.
Id. After being sentenced in federal court, he was
acquitted in state court on two of the charges and convicted
on only the aggravated-assault charge. See Sadler v.
State, 357 P.3d at 730.
then moved for relief under 28 U.S.C. § 2255 in the
United States District Court for the District of Wyoming. The
district court denied the motion and declined to grant a
certificate of appealability (COA). Defendant now requests a
COA from this court. See 28 U.S.C. §
2253(c)(1)(B) (requiring COA to appeal denial of relief under
§ 2255). He complains that the district court rejected
his request to take judicial notice of testimony in the state
trial and should have granted him relief on the grounds that
(1) his federal counsel was ineffective because he was facing
disciplinary charges and (2) his sentence was improper
because the court considered the kidnapping of which he was
later acquitted. We deny a COA and dismiss the appeal.
will issue “only if the applicant has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing
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). In other words, the applicant must
show that the district court's resolution of the
constitutional claim was either “debatable or
first claims that the district court erred by refusing to
take judicial notice of testimony at his state trial. But the
district court correctly ruled that testimony offered for its
truth is not the proper subject of judicial notice.
See Fed. R. Evid. 201(b).
next claims that his counsel was ineffective because his
attorney was facing disciplinary actions during the criminal
case. Before trial the Wyoming Supreme Court recommended that
counsel be fined and publicly censured for violating
professional-conduct rules, and he was eventually disbarred
after Defendant was sentenced in federal court. We have held,
however, that an attorney's performance is per se
defective in this context only when the attorney was not
licensed to practice law while representing the defendant
(and not always even then). See United States v.
Bergman, 599 F.3d 1142, 1147-48 (10th Cir. 2010).
Defendant's attorney was licensed when representing
Defendant, counsel's effectiveness is evaluated under the
factors articulated in Strickland v. Washington, 466
U.S. 668, 689 (1984). See United States v. Stevens,
978 F.2d 565, 568 (10th Cir. 1992) (attorney who is disbarred
without notice is not per se ineffective and his performance
must be analyzed under Strickland). Under
Strickland a defendant first has the burden of
overcoming “a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance, ” 466 U.S. at 689, by
demonstrating that his counsel's performance “fell
below an objective standard of reasonableness, ”
id. at 688.Second, a defendant must demonstrate
“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. In this court, Defendant has not pointed to any
deficient performance by his counsel, much less any
prejudice. Defendant has not persuaded us that a reasonable
jurist could debate the district court's denial of this
Defendant claims that he should be resentenced because the
federal court enhanced his sentence under USSG. §§
2K2.1(c)(1)-(c)(1)(a) and 2X1.1(a) for kidnapping, see
Sadler, 642 Fed.Appx. at 839, but he was later acquitted
on his state kidnapping charge. This court has held, however,
that acquitted conduct can be considered at sentencing.
See United States v. Lujan, 603 F.3d 850, 856 (10th
Cir. 2010) (“[E]ven evidence tending to prove that the
defendant engaged in criminal conduct for which he has
already been prosecuted and acquitted may be introduced at
sentencing in a trial charging a separate offense.”);
see also § 2K2.1 cmt. n.14(C) (a court may
consider “any Federal, state, or local offense . . .,
regardless of whether a criminal charge was brought, or a
conviction obtained” (emphasis added)). No
reasonable jurist could debate the district court's
rejection of this claim.
DENY a COA and DISMISS the appeal. We GRANT