                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 7, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                        No. 13-3167
 v.                                         (D.C. Nos. 2:13-CV-02083-JWL and
                                                  2:07-CR-20168-JWL-22)
 KEITH McDANIEL,                                          (D. Kan.)

              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Keith McDaniel, a federal prisoner proceeding pro se, 1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his motion to vacate,

set aside, or correct his sentence. Because McDaniel has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000), we DENY a COA and

DISMISS the appeal.


      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        We liberally construe McDaniel’s pro se filings. See Ledbetter v. City of
Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
      Following a federal jury trial, Keith McDaniel was convicted of various

federal cocaine related drug charges. We affirmed his conviction on direct

appeal. See United States v. McDaniel, 433 F. App’x 701 (10th Cir. 2011).

McDaniel then filed a pro se § 2255 habeas petition arguing that he received

ineffective assistance of trial and appellate counsel. He also requested an

evidentiary hearing. The district court denied the petition in its entirety and

denied the request for a hearing. On appeal, he reasserts his argument that he was

entitled to an evidentiary hearing as well as his claims of ineffective assistance of

counsel based on counsel’s failure to object to certain evidence or move to

suppress certain evidence.

      To prevail on an ineffective assistance of counsel claim, McDaniel must

show that his counsel’s conduct “fell below an objective standard of

reasonableness” and that such deficient performance resulted in prejudice to the

defense—that is, “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984).

      McDaniel claims that his counsel should have moved to suppress recorded

conversations involving McDaniel because the wiretap application was invalid.

For the same reasons articulated by the district court, we find that counsel’s

performance was not deficient or prejudicial. McDaniel argues that the wiretap

application was invalid because it did not name him in the application even

                                         -2-
though the government allegedly knew he was participating in drug trafficking

activities. 2 Even though the police may have known about McDaniel’s

participation in the conspiracy, there is no indication in the record that at the time

of the application the police knew McDaniel was related to any of the targeted

phones. As a result, the wiretap application was not invalid and McDaniel cannot

show prejudice based on his counsel’s failure to move to suppress the calls

recorded pursuant to the wiretap. See United States v. Russo, 527 F.2d 1051,

1056–57 (10th Cir. 1975) (noting that the government is not required to identify a

defendant by name in a wiretap order and application if, at the time of

application, the government lacked probable cause that defendant was either

committing the offense or using the target phone).

      McDaniel further claims that his counsel should have moved to suppress

transcripts of the calls where McDaniel’s name had been inserted in lieu of

“Unknown Male” a few days prior to trial. The district court thoroughly

addressed this issue. McDaniel does not allege the government improperly

modified the audio recordings or that he suffered prejudice as a result of the


      2
         McDaniel also alleges that he was not given prompt notice of the
government’s intent to use the contents of the wiretap to obtain an indictment.
Assuming McDaniel is claiming a violation of 18 U.S.C. § 2518(8)(d), McDaniel
was only entitled to “discretionary” notice because he was not named in the
wiretap application. See United States v. Donovan, 429 U.S. 413 (1977). As we
have stated, his omission from the application was not erroneous. As a result, the
failure to notify McDaniel, who was not named in the order, does not mandate
suppression. See id.

                                         -3-
timing of the alteration. At trial, the government put on evidence identifying

McDaniel as one of the speakers. And the transcripts of the calls were admitted

at trial for demonstrative purposes only to aid the jury in reviewing the records

themselves. Thus, even if counsel erred in failing to object to the admission of

the transcripts, McDaniel cannot show he has suffered prejudice as a result.

      Finally, McDaniel contends that his constitutional rights were violated

when the district court denied his § 2255 motion without conducting an

evidentiary hearing. We review the district court’s refusal to hold an evidentiary

hearing for an abuse of discretion. United States v. Harms, 371 F.3d 1208, 1210

(10th Cir. 2004). After reviewing the record, we are satisfied that the district

court did not abuse its discretion in declining to hold an evidentiary hearing.

      Accordingly, we DENY McDaniel’s application for a COA and DISMISS

the appeal.

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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