United States v. Gaines

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Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we grant counsel's motion to withdraw, deny a COA, and dismiss this matter.

I. BACKGROUND

In September 2017, a jury convicted Mr. Gaines of possessing a controlled substance with intent to distribute, possessing a firearm in furtherance of a drug- trafficking offense, and possessing a firearm after a felony conviction. The district court sentenced Mr. Gaines to 180 months in prison followed by eight years of supervised release.²

In August 2016, the district court discovered that the United States Attorney's Office for the District of Kansas ("USAO") had obtained soundless recordings from the attorney-client meeting rooms at the Corrections Corporation of America ("CCA") Leavenworth facility. ROA at 50; see also United States v. Black, No. 16- 20032-JAR, 2017 WL 2151861 (D. Kan. May 17, 2017). Mr. Gaines was detained at CCA pending trial, and the recordings included two meetings between Mr. Gaines and his attorneys. The government produced the soundless video recordings to the court in the Black case.

In August 2019, the district court "issued the Black Order," which addressed whether the USAO's possession of the recordings violated the Sixth Amendment right to confidential attorney-client communications. ROA at 50-51. The Black

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Order outlined "the elements required to prove a per se violation of the Sixth Amendment under the Tenth Circuit's then-governing decision in Shillinger v. Haworth." Id. at 51 (citing Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995)). It explained, "Under Shillinger, a per se Sixth Amendment violation occurs when:

(1) there is a protected attorney-client communication; (2) the government purposefully intruded into the attorney-client relationship; (3) the government becomes 'privy to' the attorney-client communication because of its intrusion; and

(4) the intrusion was not justified by any legitimate law enforcement interest." Mem. & Order at 162, United States v. Black, No. 16-20032-JAR (D. Kan. Aug. 13, 2019) (quoting Shillinger, 70 F.3d at 1142). It further noted that, under Shillinger, once a plaintiff establishes these four elements, prejudice is presumed. The Black Order reassigned all § 2255 motions predicated on the recordings for a determination on the merits.

In November 2022, Mr. Gaines moved for habeas relief under § 2255 based on the two soundless video recordings, arguing a Sixth Amendment violation under Shillinger. In response, the Government argued the Shillinger prejudice presumption was dicta and contrary to Supreme Court precedent. The district court held Mr. Gaines's motion in abeyance pending our decision in United States v. Hohn, 123 F.4th 1084 (10th Cir. 2024), in which the government raised similar challenges to Shillinger.

Hohn overruled Shillinger, holding that "a Sixth Amendment violation of the right to confidential communication with an attorney requires the defendant to show Appellate Case: 26-3024 Document: 32-1 Date Filed: 09/01/2026 Page: 3

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prejudice." United States v. Hohn, 123 F.4th 1084, 1088 (10th Cir. 2024) (en banc), cert. denied, 146 S. Ct. 293 (Oct. 14, 2025).

The district court in this case ordered the parties to submit supplemental briefs addressing the impact of Hohn on Mr. Gaines's motion. In their briefs, the parties agreed that Hohn controlled. Further, Mr. Gaines conceded that his motion was entirely premised on Shillinger's prejudice presumption and that Hohn was "the death-knell for [his] motion." ROA at 270-72.

Based on Hohn and this concession, the district court concluded that Mr. Gaines failed to demonstrate prejudice.³It noted that Hohn requires a defendant to "tether governmental intrusion to a realistic possibility of injury from the use of confidential communications at trial." Id. at 53 (quoting Hohn, 123 F.4th at 1112). Thus, to satisfy Hohn, Mr. Gaines needed to connect the soundless recordings "to anything used during the criminal proceedings that either disadvantaged him or advantaged the prosecution." Id. at 53-54 (quoting Hohn, 123 F.4th at 1110). The court concluded Mr. Gaines failed to make this showing: "There is no evidence in the record that suggests or allows the Court to infer that the government used the

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soundless video recordings at his trial or gleaned something from the recordings that gave it an advantage or that gave Petitioner a disadvantage." Id. at 54. After filing a notice of appeal on behalf of Mr. Gaines, his counsel moved to withdraw and filed an Anders brief. This court sent copies of the Anders brief and motion to withdraw to Mr. Gaines, but he did not respond.⁴

II. DISCUSSION

A. Legal Background Certificate of Appealability

A federal prisoner must obtain a COA to appeal the denial of § 2255 habeas relief. 28 U.S.C. § 2253(c)(l)(B). We will issue a COA only if the movant makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He must demonstrate "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We review the district court's factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).

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Anders

Anders allows counsel to "request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous." United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). [C]ounsel must submit a brief to the client and the

appellate court indicating any potential appealable issues based on the record. The client may then choose to submit arguments to the court. The [c]ourt must then conduct a full examination of the record to determine whether

defendant's claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel's motion to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).

We "must then conduct a full examination of the record to determine whether defendant's claims are wholly frivolous." Id. (citing Anders, 386 U.S. at 744). If there are no nonfrivolous issues, we may grant counsel's motion to withdraw and dismiss the appeal. Id.

B. Analysis

The Anders brief concludes there are no nonfrivolous grounds on which to appeal the district court's decision. Anders Br. at 2. We agree. Mr. Gaines's § 2255 motion relied on Shillinger, under which a court presumed prejudice once a defendant established the four elements of an intentional government intrusion. But Hohn overruled Shillinger. Hohn, 123 F.4th at 1088. To state a Sixth Amendment claim under Hohn, a defendant must demonstrate that the government's intrusion resulted in prejudice. Id. In district court, Mr. Gaines Appellate Case: 26-3024 Document: 32-1 Date Filed: 09/01/2026 Page: 6

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conceded, both in his original § 2255 motion and his supplemental brief, that he could not make this showing. ROA at 74 ("Like most defendants, Mr. Gaines cannot point to a specific trial advantage the United States gained by obtaining the recordings of his meetings with his attorneys."); id. at 272 ("Hohn is the death-knell for Mr. Gaines's Motion . . . . As Mr. Gaines acknowledged, he cannot point to a trial advantage that the Government gained by obtaining his confidential communications."). In light of these concessions, we agree with the Anders brief that there are no nonfrivolous grounds to argue on appeal. We also conclude that reasonable jurists could not debate the district court's conclusion that Mr. Gaines failed to show prejudice.

III. CONCLUSION

Our independent review of the record reveals that there are no nonfrivolous grounds for appeal and no basis on which to grant a COA. We therefore grant counsel's motion to withdraw, deny a COA, and dismiss this matter. Entered for the Court

Scott M. Matheson, Jr.

Circuit Judge

Appellate Case: 26-3024 Document: 32-1 Date Filed: 09/01/2026 Page: 7