                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 09-5001
 MICHAEL DELEVAN ENGLES,                      (D.C. Nos. 08-CV-193-HE-FHM and
                                                      05-CR-104-HE-1)
          Defendant-Appellant.                           (N. D. Okla.)



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Michael D. Engles, a federal prisoner appearing pro se, seeks a certificate

of appealability (COA) in order to challenge the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Engles

has failed to satisfy the standards for the issuance of a COA, we deny his request

and dismiss the matter.

                                          I

      This court, in addressing Engles’ direct appeal, outlined the procedural

background of his case:



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
          Michael Engles was indicted on November 9, 2005, in the United
      States District Court for the District of Oklahoma on six counts
      arising out of vehicle searches in May 2003 and May 2004. Each
      search led to three charges: convicted felon in possession of a
      firearm and ammunition, see 18 U.S.C. §§ 922(g)(1) and 924(a)(2);
      possession with intent to distribute controlled substances, see 21
      U.S.C. § 841(a)(1) and (b)(1)(C); and possession of a firearm and
      ammunition in furtherance of a drug-trafficking crime, see 18 U.S.C.
      § 924(c)(1)(A). Before his jury trial Mr. Engles moved to suppress
      evidence obtained in the first search. After the motion was denied,
      he was tried by a jury and found guilty on all counts. On February
      24, 2006, the district court sentenced him to 420 months’
      imprisonment.

United States v. Engles, 481 F.3d 1243, 1244 (10th Cir. 2007).

      On direct appeal, Engles “challeng[ed] the denial of his motion to

suppress,” id., arguing that “his vehicle was unlawfully detained while the

officers awaited [the arrival of a] drug dog, because they lacked reasonable

suspicion to believe it contained contraband.” Id. at 1245. This court concluded

that “reasonable suspicion was unnecessary” because “[t]he officers did not

‘detain’ the vehicle,” but rather “lawfully arrested . . . Engles and his passenger,”

and Engles’ vehicle “was parked” and “going nowhere.” Id. Accordingly, this

court held that “no illegality tainted the actual [May 2004] search,” and affirmed

Engles’ convictions. Id. at 1246. The United States Supreme Court subsequently

denied Engles’ petition for writ of certiorari. Engles v. United States, 128 S.Ct.

242 (2007).

      On April 4, 2008, Engles, appearing pro se, filed a 28 U.S.C. § 2255

motion to vacate, set aside, or correct sentence. The motion alleged, in pertinent

                                           2
part, that Engles “and his appointed counsel . . . suffered a relationship that was

embroiled in irreconcilable conflict that resulted in a constructive denial of

counsel.” ROA, Vol. 1, Doc. 86 at 7. In connection with this claim, the motion

further alleged that the district court erred in refusing to allow Engles’ appointed

counsel to withdraw. In addition, Engles’ motion alleged that appellate counsel

was ineffective for failing to raise on direct appeal the irreconcilable conflict

issue. 1

           On November 25, 2008, the district court issued an order denying Engles’ §

           1
         Engles’ motion also included two additional claims: (1) whether the
Supreme Court’s decision in Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400,
2407 (2007), holding that passengers in a vehicle are seized for purposes of the
Fourth Amendment when a traffic stop occurs, represented an intervening change
in the law that supported the validity of the suppression claim he raised on direct
appeal and entitled him to habeas relief; and (2) whether the jury instructions
employed in his case were erroneous in light of the Supreme Court’s decision in
Watson v. United States, 128 S.Ct. 579, 586 (2007), in which the Court held that
a person who trades his drugs for a gun does not “use” a firearm for purposes of
18 U.S.C. § 924(c)(1)(A).
       The district court denied both of these claims on the merits. More
specifically, the district court concluded that Brendlin was inapposite, since Engle
was the driver of, rather than a passenger in, the vehicle that was searched, and
because the search at issue occurred after Engle and his passenger had been
placed under arrest. Thus, the court concluded Engle was “not entitled to habeas
relief on the basis of the search of his automobile.” ROA, Doc. 93 at 3. Further,
the district court rejected Engles’ Watson-based claim on three grounds: because
Watson was charged under the “possession in furtherance” prong of 18 U.S.C. §
924(c) rather than the “use” prong, id., because “[t]he jury was not instructed that
[Engles] could be convicted under § 924(c) if it found that he had obtained the
firearms in exchange for drugs,” id. at 4 n.5, and because “there was no evidence
that the firearms charged in the indictment were obtained by [Engles] in exchange
for drugs,” and instead the evidence at trial established that Engles “possessed the
firearms in furtherance of drug trafficking.” Id. at 4.
       Engles does not seek a COA with respect to either of these claims.

                                            3
2255 motion. Turning first to Engles’ claim that there was an irreconcilable

conflict between himself and his trial attorney, the district court concluded that

the purported evidence of a communication breakdown between Engles and his

attorney, i.e., Engles’ “refusal to allow his counsel to cross-examine one of the

government’s witnesses, Kim Dixon [the passenger in his vehicle at the time of

the challenged search and his purported common-law wife],” was “not a lack of

communication, but [rather] a disagreement regarding trial strategy, which ‘is

generally not a basis for ineffective assistance of counsel.’” Id. at 5 (quoting

United States v. Ambort, 282 Fed. App’x 714, 717 (10th Cir. 2008)). Further, the

district court rejected as “unpersuasive” Engles’ assertion “that he and his

attorney ‘had not discussed important decisions needing to be made, such as

whether Engles would testify on his own behalf . . . .’” Id. (quoting ROA, Vol. 1,

Doc. 86 at 9). In particular, the district court noted that the transcript page cited

by Engles in support of this assertion “reflect[ed] only that a decision as to

whether [Engles] was going to testify had not yet been made, not that [Engles]

and his attorney had not discussed whether he would take the stand.” Id. at 5-6.

In addition, the district court noted that it had “conducted a hearing on the motion

to withdraw” that was filed by defense counsel at Engles’ direction. Id. at 6.

During that hearing, the district court noted, Engles, “[w]hen specifically asked

by the court to explain the basis for his dissatisfaction with his lawyer,” “cited the

lack of a preliminary hearing and his counsel’s failure to file a motion to suppress


                                           4
[the results of the May 2004 search],” but “did not assert any concern that his

attorney did not fully represent his interests.” Id. “After being apprised of the

circumstances surrounding both the 2004 search and counsel’s decision not to

move to suppress evidence obtained during that search,” the district court noted, it

“concluded that [Engles] was not entitled to new counsel as his disagreements

with his attorney essentially were over matters of trial strategy.” Id. at 6-7. In

sum, the district court concluded, “[t]he record d[id] not show an irreconcilable

conflict or demonstrate that defense counsel’s representation of . . . Engles fell

below the standard demanded of attorneys in criminal cases.” Id. at 7. Finally,

having rejected Engles’ irreconcilable conflict claim, the district court concluded

that Engles was not prejudiced by his appellate counsel’s failure to raise that

claim on direct appeal.

      Engles filed a timely notice of appeal and a request for COA. The district

court denied Engles’ request for COA. Engles has now renewed his request for

COA with this court.

                                          II

      The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A

COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To make such a

showing, an applicant must demonstrate “that reasonable jurists could debate


                                          5
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)

(citation and internal quotation marks omitted).

      Generally, a criminal defendant claiming a violation of his Sixth

Amendment right to effective assistance of counsel must demonstrate that (1)

counsel’s performance fell below an objective standard of reasonableness; and (2)

counsel’s deficient performance prejudiced the defendant so that, but for

counsel’s errors, there was a reasonable probability the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694

(1984). If, however, the defendant can demonstrate that there was “[a] complete

breakdown in communication” between himself and his attorney, United States v.

Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988), a presumption of

ineffectiveness will arise, making it unnecessary for the defendant to satisfy the

two-pronged Strickland test. United States v. Cronic, 466 U.S. 648, 658 (1984).

      In determining whether a purported breakdown in the attorney-client

relationship has rendered a defendant’s representation constitutionally deficient,

we consider several elements, including the following: (1) whether the defendant

made a timely motion requesting new counsel; (2) whether the court adequately

inquired into the matter; (3) whether the conflict between the defendant and his

attorney was “so great that it resulted in a total lack of communication preventing


                                          6
an adequate defense”; and (4) whether the defendant substantially and

unjustifiably contributed to the breakdown in communication. Romero v.

Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000).

      Here, Engles’ appointed trial counsel, at Engles’ direction, moved to

withdraw. The district court conducted a hearing on the motion, during which it

heard from both Engles and his attorney. At the conclusion of that hearing, the

district court concluded that an irreconcilable conflict did not exist, and that,

instead, Engles was simply dissatisfied with certain strategic decisions made by

his attorney. Accordingly, the district court denied the motion and Engles’

appointed counsel proceeded to represent Engles at trial. In the course of

revisiting the issue as raised in Engles’ § 2255 motion, the district court also

rejected as unsupported Engles’ assertion that he and his appointed counsel had

not discussed important decisions, including whether Engles would testify at trial

on his own behalf.

      In his motion for COA, Engles does not specifically challenge the district

court’s analysis and rejection of his irreconcilable conflict claim. Instead, he

simply asserts that “[t]he [purported] irreconcilable conflict arose[] from the fact

that [he] refused to allow [trial counsel] to cross examine his common-law wife

‘Kim Dixon.’” Mot. at 7. Although it is not entirely clear, Engles appears to be

suggesting that trial counsel became upset upon “learning that he would not be

impeaching the testimony of Ms. Dixon . . . .” Id. Engles also alleges in


                                           7
conclusory fashion that, following the district court’s denial of counsel’s motion

to withdraw, counsel “failed to keep [Engles] informed of important

developments, discuss the government’s case-in-chief, []or perfect a defense, i.e.,

strategic strategies.” Id. at 5. Finally, Engles argues, again in conclusory

fashion, that this irreconcilable conflict “lead to a[n] unjust verdict.” Id. at 8.

      Having examined Engles’ appellate pleadings and the record on appeal, we

conclude that the arguments forwarded by Engles in his application for COA are

legally frivolous. Moreover, we find the resolution by the district court to be

undebatable. We therefore conclude that Engles has failed to make the requisite

showing for the issuance of a COA with respect to the irreconcilable conflict

issue. And, because Engles’ ineffective assistance of appellate counsel claim

essentially hinges on the merits of his irreconcilable conflict claim, we conclude

that Engles has failed to establish his entitlement to a COA on that issue as well.

      The application for COA is DENIED and the matter is DISMISSED.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




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