No. 1:16-CV-02740-CMA) (D. Colo.)
BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge.
Mikeal Glenn Stine seeks a certificate of appealability (COA)
to appeal the dismissal by the United States District Court
for the District of Colorado of his motion under 28 U.S.C.
§ 2255. See 28 U.S.C. § 2253(c)(1)(B)
(requiring COA to appeal denial of relief under § 2255).
Because no reasonable jurist could debate the district
court's disposition of Defendant's claims, we deny a
COA and dismiss the appeal.
August 2015, Defendant was convicted by a jury on two counts
of threatening a United States Magistrate Judge and one count
of threatening an assistant United States attorney in
violation of 18 U.S.C. § 115(a)(1)(B) and (b)(4).
Defendant appealed and this court affirmed. See United
States v. Stine, 664 Fed.Appx. 697, 698 (10th Cir.
filed his § 2255 motion in November 2016, claiming that
his counsel was ineffective in four respects: (1) failing to
assert Defendant's speedy-trial right; (2) failing to
retain a handwriting expert to examine the threatening
letters or to call favorable witnesses identified by
Defendant; (3) failing to cross-examine all the
government's witnesses; and (4) failing to allow
Defendant to testify. The district court denied relief on the
merits of all claims and also denied his request for
appointment of counsel and a private
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 wrong." Id.
prevail on his ineffective-assistance claims, Defendant must
show both that his counsel's performance was
deficient-"that counsel made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment"-and
that "the deficient performance prejudiced [his]
defense." Strickland v. Washington,
466 U.S. 668, 687 (1984). In undertaking this analysis,
"a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy." Id. at 689 (internal quotation marks
omitted). Particularly relevant here:
[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a
duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments.
Id. at 690-91. Further, to establish that a
defendant has been prejudiced by counsel's deficient
performance, a defendant "must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id. at 694. "It is not enough
for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding."
Id. at 693. "In making this determination, a
court . . . must consider the totality of the evidence before
the judge or jury, " recognizing that "a verdict or
conclusion only weakly supported by the record is more likely
to have been affected by errors than one with overwhelming
record support." Id. at 695-96. "[A] court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the
errors." Id. at 696. "Failure to make the
required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim."
(emphasis added)). Id. at 700.
easily dispose of the ineffective-assistance/speedy-trial
claim on Strickland's prejudice prong. As the
district court noted, this court determined on
Defendant's direct appeal that his speedy-trial rights
were not violated. See Stine, 664 Fed.Appx. at
701-03. Defendant could not have been prejudiced by failure
to raise an issue that was doomed to fail. See Dennis v.
Poppel, 222 F.3d 1245, 1261 (10th Cir. 2000).
remaining claims concern strategic and tactical decisions in
the trial. The district judge who denied Defendant's
§ 2255 motion, who had also presided at Defendant's
trial, noted that the "government called five witnesses
and presented overwhelming evidence of Defendant's
guilt." R., Vol. I. at 123. In particular, an FBI agent
testified that Defendant had confessed to sending the
letters. Defense counsel's strategy therefore focused on
Defendant's scienter, contending that the letters were
not serious and he wrote them just to bring attention to what
he viewed as his unfair treatment by the federal Bureau of
Prisons. Such a strategy would render it unnecessary, or even
counterproductive, to challenge much of the government's
case-it could weaken the credibility of Defendant's
argument that he did not intend the letters as threats if he
also denied writing them. Given Strickland's
mandate that we defer to properly informed strategic
decisions by trial counsel, no reasonable jurist could debate
the district court's rejection of Defendant's second
and third ineffective-assistance claims. The overall defense
strategy explains the decision not to call witnesses
identified by Defendant or to seek a handwriting expert to
challenge whether Defendant signed the threatening letters;
and it also explains why defense counsel cross-examined the
witnesses he did: questioning those able to discuss
Defendant's intent and not questioning those who would be
unable to advance the strategy.
fourth claim-that his counsel refused to allow him to
testify- requires some additional discussion. A criminal
defendant has the constitutional right to testify in his own
defense. See Cannon v. Mullin, 383 F.3d 1152, 1171
(10th Cir. 2004). This prerogative is the defendant's
alone, and "counsel lacks authority to prevent a
defendant from testifying in his own defense, even when doing
so is suicidal trial strategy." Id. Thus, if
Defendant's factual allegation is true and his attorney
prevented him from testifying at trial, then the
attorney's performance was deficient. But Defendant must
still satisfy the prejudice prong of the Strickland
test. See Cannon v. Trammell, 796 F.3d 1256, 1275
(10th Cir. 2015) (holding that there was no prejudice in
preventing defendant from testifying because "the
inconsistences between the record evidence, including his
recorded statement, and his evidentiary hearing testimony
support a conclusion that Cannon would not have advanced his
cause by testifying at trial"). Defendant argued below
and in this court that he wished to testify, not regarding
his intent, but to show that circumstances made it impossible
for him to have written or mailed the threatening letters.
This would have been a futile venture. This claim fails on
the prejudice prong because the failure to call Defendant as
a witness does not come close to undermining confidence in
the outcome of the trial. See Strickland, 466 U.S.
no reasonable jurist could debate that the district court
properly rejected Defendant's ineffective-assistance
claims. Finally, we see no abuse of discretion in the
district court's denial of Defendant's request for