585 F. App'x 948
10th Cir.2014Background
- Herget pled guilty to one count of receipt of child pornography under 18 U.S.C. § 2252(a)(2).
- Plea agreement dropped nine other charges; Herget reserved the right to appeal any sentence above the advisory range.
- Prior conviction triggered a 15-year mandatory minimum, elevating the guideline range from 168–210 to 180–210 months.
- Sentencing court varied upward and sentenced 240 months; appellate panel affirmed as reasonable.
- Herget filed a § 2255 motion challenging conviction and sentence; district court denied due to waiver and procedural bar.
- District court refused to revisit issues already disposed on direct appeal or due to direct-appeal/bar mechanisms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| COA requirement for §2255 denial | Herget seeks COA arguing denial of §2255 is appealable. | COA is limited to substantial showing of denial of constitutional right. | COA denied; claims procedurally barred |
| Ineffective assistance waiver | Ineffective assistance claim should be considered despite waiver. | Waived; Anderson construction does not rescue. | Waived; not considered |
| First Amendment/variance-based claim | Upward variance based on protected speech; merits review. | Claim raised late and covered by direct-appeal disposition. | Procedurally barred; not resolved here |
| Due process challenge to sentence | Due process challenge to 15-year minimum should be reviewable. | Could have been raised on direct appeal; barred by Bousley. | Precluded; not reviewable here |
Key Cases Cited
- United States v. Gonzalez, 596 F.3d 1228 (10th Cir. 2010) (standards for obtaining a COA in §2255 cases; procedural bar analysis)
- Slack v. McDaniel, 529 U.S. 473 (Supreme Court 2000) (requires substantial showing of denial of a constitutional right for COA)
- Clark v. Oklahoma, 468 F.3d 711 (10th Cir. 2006) (juries must show debatable issues on procedural rulings for COA)
- Prichard, 875 F.2d 789 (10th Cir. 1989) (direct-appeal disposition bars collateral review of same issues)
- Bousley v. United States, 523 U.S. 614 (Supreme Court 1998) (claims fully raisable on direct appeal barred from collateral review)
- United States v. Warner, 23 F.3d 287 (10th Cir. 1994) (issues raised had been decided on direct appeal or should have been)