Introduction

In United States v. Elliott, No. 25-2018 (10th Cir. Nov. 13, 2025), a Tenth Circuit panel (Judges Tymkovich, Baldock, and Phillips) denied a certificate of appealability (COA) to federal prisoner Samuel Elliott, who sought to appeal the denial of his 28 U.S.C. § 2255 motion. Elliott’s motion raised three ineffective-assistance-of-counsel (IAC) grounds: (1) counsel’s failure to challenge a restitution order; (2) counsel’s failure to review certain video evidence pertinent to sentencing enhancements and related advice about testimony and cross-examination; and (3) counsel’s alleged abandonment of plea bargaining, including failure to communicate offers and advocate for a plea near the mandatory minimum.

The case arrives after a significant procedural history. Elliott originally pleaded conditionally to three production counts and four possession counts of child pornography. He received an aggregate sentence of 170 years. On direct appeal, the Tenth Circuit held that three of the four possession convictions violated the Double Jeopardy Clause and remanded to vacate those counts. On remand, the district court resentenced Elliott to consecutive terms totaling 110 years and left the restitution award intact. Elliott then pursued § 2255 relief, which the district court denied on the merits after de novo review of a magistrate judge’s proposed findings and recommendations (PFRD). The district court also denied a COA. Elliott sought a COA from the Tenth Circuit, prompting this order.

Although designated as non-precedential, the order is citable for its persuasive value and crystallizes two important points: (a) § 2255 does not provide a vehicle to attack restitution orders—even when such a challenge is packaged as ineffective assistance—and (b) a plea-bargaining IAC claim fails at the COA stage absent a concrete showing under Missouri v. Frye that the defendant would have accepted the earlier offer.

Summary of the Opinion

The court denied a COA and dismissed the matter. Applying Slack v. McDaniel’s standard for COAs following merits denials, the panel concluded that no reasonable jurist would debate the district court’s resolution of Elliott’s constitutional claims.

• Restitution: The court held that § 2255 affords relief only to prisoners claiming a right to be released from custody. Because a restitution order does not implicate custody, it is not cognizable in § 2255—even when framed as an IAC claim or brought alongside custody-based claims. The panel cited United States v. Bernard (8th Cir.), Erlandson v. Northglenn Municipal Court (10th Cir.) (on habeas custody), and United States v. Thiele (9th Cir.) in support.
• Sentencing-phase IAC: On Elliott’s claim that counsel failed to review video evidence underlying a penetration-based enhancement and thus gave deficient advice about objections, testimony, and cross-examination, the panel agreed with the district court that counsel’s performance was not objectively unreasonable and that Elliott showed no prejudice under Strickland v. Washington.
• Plea-bargaining IAC: Assuming arguendo any deficiency, the court found Elliott’s claim failed on prejudice because he did not argue there was a reasonable probability he would have accepted an earlier plea had counsel performed effectively, as required by Missouri v. Frye. That omission was “fatal” to the claim.

Detailed Analysis

Precedents Cited and Their Role

• Slack v. McDaniel, 529 U.S. 473 (2000): Establishes the COA standard. When a district court rejects constitutional claims on the merits, a COA issues only if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” The panel applied Slack to each merits-rejected claim and held Elliott did not meet this threshold.
• Strickland v. Washington, 466 U.S. 668 (1984): Sets the two-prong IAC standard—deficient performance (objective unreasonableness) and prejudice (reasonable probability of a different outcome). The court invoked Strickland’s flexibility to address prongs in any order. For the sentencing-evidence claim, the court concluded both prongs failed: counsel was not objectively unreasonable under the circumstances, and Elliott could not show prejudice.
• Missouri v. Frye, 566 U.S. 134 (2012): Governs IAC in plea bargaining, obligating counsel to communicate formal plea offers and framing the prejudice inquiry: the defendant must show a reasonable probability he would have accepted the earlier offer but for counsel’s errors. The panel emphasized Elliott did not even assert he would have accepted any offer or a plea near the minimum, dooming the claim at the COA stage.
• United States v. Bernard, 351 F.3d 360 (8th Cir. 2003): Persuasive authority that § 2255 “affords relief only to prisoners claiming a right to be released from custody,” foreclosing restitution-only challenges. The panel relied on Bernard to align with the broad consensus that restitution is outside § 2255’s remedial scope.
• Erlandson v. Northglenn Municipal Court, 528 F.3d 785 (10th Cir. 2008): A Tenth Circuit habeas case underscoring that fines/restitution are not “custody” for federal habeas purposes. Cited “cf.” to support the custody predicate that also constrains § 2255 relief.
• United States v. Thiele, 314 F.3d 399 (9th Cir. 2002): Persuasive authority holding a restitution attack remains noncognizable under § 2255 even when bundled with a cognizable custody claim or re-labeled as IAC. The panel adopted this logic to reject attempts to sidestep the custody requirement through artful pleading.
• United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019): The panel referenced its earlier direct-appeal decision vacating three possession convictions on Double Jeopardy grounds. That background explains the resentencing to 110 years and the restitution award’s persistence, but does not drive the COA analysis.

Legal Reasoning

The court’s analysis proceeds on three parallel tracks, each filtered through the COA lens of Slack.

1. Restitution is outside § 2255’s reach. The panel started with the statute’s text: § 2255 affords a remedy to “prisoners in custody” claiming a right to release. A restitution obligation, standing alone, is not custody. And styling the challenge as ineffective assistance, or attaching it to other custody-based grounds, does not convert a non-cognizable claim into a cognizable one. The court’s reliance on Bernard, Erlandson, and Thiele underscores a cross-circuit consensus and clarifies that in the Tenth Circuit, too, § 2255 is not the vehicle to reduce or vacate restitution.
2. No debatable error on sentencing-phase IAC. Elliott argued counsel did not review video evidence pertinent to a penetration-based enhancement before advising him about objections, testimony, and cross-exam strategy, rendering the advice objectively unreasonable and prejudicial. The district court, after an evidentiary hearing and de novo review, found that counsel’s performance was reasonable given the circumstances and that, in any event, Elliott had not shown prejudice. The panel, deferring to that assessment under Strickland’s reasonableness framework, concluded no reasonable jurist would find those determinations debatable or wrong.
3. Plea-bargaining IAC fails for lack of Frye prejudice. Elliott claimed counsel “effectively abandoned” plea negotiations by failing to timely communicate offers and failing to advocate for a plea near the 15-year mandatory minimum. The court did not decide the deficiency prong. Instead, applying Frye, it held the claim fails on prejudice because Elliott did not contend—much less demonstrate—that he would have accepted any earlier offer or a more favorable plea had counsel performed adequately. Without that showing, the claim cannot support a COA.

Impact and Practical Implications

• Channeling restitution challenges out of § 2255. This order reinforces that federal prisoners cannot use § 2255 to attack restitution, even indirectly through IAC theory. Practitioners must raise restitution issues on direct appeal or invoke the limited statutory mechanisms specific to restitution (e.g., modification of payment schedules under 18 U.S.C. § 3664(k)), recognizing that those avenues typically cannot alter the restitution principal or underlying liability. Efforts to bundle restitution with custody claims will not cure the jurisdictional problem.
• Plea-bargaining IAC: the indispensable prejudice allegation. A plea-stage IAC claim must include a concrete allegation that the defendant would have accepted the earlier offer but for counsel’s performance. The absence of that assertion—supported by some evidentiary basis—will be fatal at the COA stage. Defense counsel should preserve records of offers and client decisions; post-conviction counsel should develop specific evidence of acceptance, sentencing exposure, and likely judicial acceptance of the plea to satisfy Frye’s prejudice framework.
• Sentencing-phase IAC: Strickland’s deference and prejudice hurdles. Claims premised on counsel’s supposed failure to investigate or review specific evidence must connect the alleged deficiency to a plausible, outcome-changing effect—e.g., a different guideline calculation, a successful objection, or a materially different sentence. Conclusory assertions that counsel “should have watched the video” will rarely suffice absent a showing of how that would have changed the enhancement decision or the court’s sentencing determination.
• COA gatekeeping remains stringent. The decision illustrates Slack’s demanding threshold. Even after an evidentiary hearing and de novo review below, the panel declined a COA where the district court’s merits determinations were not reasonably debatable. Petitioners should frame issues to highlight genuine legal uncertainty or factual disputes substantiated by the record.
• Persuasive but non-binding. Although the order is non-precedential, it is citable for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Its reasoning will likely be followed by district courts within the circuit, particularly on the non-cognizability of restitution challenges and the rigorous application of Frye at the COA stage.

Complex Concepts Simplified

• Certificate of Appealability (COA): In federal post-conviction cases, a prisoner cannot appeal the denial of a § 2255 motion without a COA. A COA issues only if the petitioner makes a “substantial showing of the denial of a constitutional right,” which, after a merits denial, means showing that reasonable jurists could debate the district court’s decision.
• § 2255 “Custody” Limitation: Section 2255 remedies unlawful custody. Monetary penalties like fines and restitution do not place a person “in custody,” so claims aimed solely at those penalties are outside § 2255’s scope.
• Ineffective Assistance of Counsel (Strickland): To win, a defendant must prove both that counsel’s performance fell below an objective standard of reasonableness and that the error prejudiced the outcome—a “reasonable probability” of a different result.
• Plea-Bargaining IAC (Frye): Counsel must communicate formal plea offers and perform reasonably during plea negotiations. To prove prejudice, the defendant must show a reasonable probability he would have accepted the offer, the prosecution would not have withdrawn it, and the court would have accepted it.
• Conditional Plea: A guilty plea entered with the court’s and government’s consent that preserves specified pretrial issues for appeal. Elliott’s initial conditional plea set the stage for his successful Double Jeopardy appeal on three possession counts.
• Consecutive Sentences and Guideline Enhancements: Separate counts can carry separate terms that run one after another (consecutively). Sentencing enhancements (e.g., based on “penetration”) can increase the advisory guideline range and influence the court’s ultimate sentencing choices.

Conclusion

United States v. Elliott adds clear, persuasive guidance within the Tenth Circuit on two recurring post-conviction issues. First, § 2255 cannot be used to attack restitution orders, and presenting the issue as ineffective assistance—or alongside custody-based claims—does not overcome the statute’s custody limitation. Second, plea-bargaining IAC claims hinge on a concrete prejudice showing under Frye; failure to allege that the defendant would have accepted the earlier offer is dispositive at the COA stage. On the sentencing-phase IAC claim, the court’s adherence to Strickland highlights the deference afforded to counsel’s strategic decisions and the high bar for demonstrating prejudice.

While non-precedential, the order is likely to shape district court practice across the circuit. For petitioners and counsel, the opinion underscores the importance of: selecting the correct vehicle for restitution disputes; substantiating plea-bargaining prejudice with specific allegations and evidence; and connecting alleged investigative or advisory lapses to a demonstrable, outcome-altering effect. The Tenth Circuit’s denial of a COA reflects a disciplined application of Slack, Strickland, and Frye—reinforcing finality interests while clarifying the contours of cognizable § 2255 relief and the evidentiary rigor required to surmount the COA threshold.