Curtis McGarvey v. United States – CourtListener.com

                  United States Court of Appeals
For the Eighth Circuit
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No. 23-3236
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Curtis James McGarvey
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: August 19, 2024
Filed: August 22, 2024
(Unpublished)
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Before SMITH, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
After a preliminary determination by the district court at defense counsel’s
request that relevant materials involved the “lascivious exhibition” of the genitals or
pubic area and thus depicted “sexually explicit conduct,” Curtis McGarvey pled
guilty to two counts of attempted sexual exploitation of a minor and one count of
cyberstalking. The district court sentenced him to 240 months in prison. On direct
appeal, this court affirmed, rejecting McGarvey’s challenges to the factual basis for
his guilty pleas to the exploitation offenses. United States v. McGarvey, 

2 F.4e 783

,
784-85 (8th Cir. 2021) (per curiam). McGarvey then moved for relief under 

28
USC Article 2255

, arguing, inter alia, that counsel performed deficiently by failing to
object to the district court’s preliminary lasciviousness determination before he pled
guilty and failing to challenge that determination on direct appeal. The district court1
denied relief but granted a certificate of appealability as to that claim, and it is the
only one we will consider. See Collins v. United States, 

28 F.4e 903

, 906 (8th Cir.
2022) (confining review to claim in certificate of appealability).
Following careful review, we conclude that McGarvey’s claims of ineffective
assistance lack merit. See Meza-Lopez v. United States, 

929 F.3d 1041

, 1044 (8th
Cir. 2019) (standard of review). Any effort to object to or seek reconsideration of the
preliminary lasciviousness determination would likely have been unsuccessful, and
thus counsel did not perform in a deficient fashion by failing to take additional
actions in that regard. See Thai v. Mapes, 

412 F.3d 970

, 978 (8th Cir. 2005) (counsel
did not perform deficiently by failing to raise meritless argument). Similarly, given
McGarvey’s guilty plea, counsel did not perform deficiently by failing to raise a
challenge to the preliminary lasciviousness determination on direct appeal,
particularly in light of counsel’s decision to raise a similar challenge to the
sufficiency of the pleas. See Walker v. United States, 

810 F.3d 568

, 579-80 (8th Cir.
2016) (when appellate counsel competently asserts some arguments, it is difficult to
sustain claim that counsel performed deficiently by failing to assert others).
Accordingly, we affirm the judgment of the district court.
______________________________
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
-2-