                                                                              F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                 UNITED STATES COURT OF APPEALS                               MAR 12 2004

                                 TENTH CIRCUIT                          PATRICK FISHER
                                                                                  Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 02-3341
                                                 (D.C. Nos. 01-CV-3103-JAR and
 v.
                                                     98-CR-40024-02-JAR)
                                                            (D. Kan.)
 GARY JACK HOLLIS, JR.,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Circuit Judge, and ANDERSON, and BRORBY, Senior
Circuit Judges.


      In this action pursuant to 28 U.S.C. § 2255, a Certificate of Appealability

(COA) was granted as to the following issues:

      1) Whether Mr. Hollis received ineffective assistance of trial counsel

            a) based on his counsel’s failure to allow him to testify or to
            advise him that the decision to testify was exclusively his
            decision, or


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
          b) based upon his counsel’s failure to call co-defendant,
          Wayne Getman, as a trial witness;

      2) Whether the Supreme Court’s decision in Apprendi v. New Jersey,
      530 U.S. 466 (2000), renders Mr. Hollis’ conviction unconstitutional
      and whether that issue is procedurally barred;

      3) Whether Mr. Hollis’ challenge to the drug quantity was
      procedurally barred and, if so, whether counsel was ineffective for
      failing to raise it.

Having reviewed these issues in light of the entire record, we affirm. 1

      After a jury trial, Mr. Hollis was found guilty of one count of conspiracy to

manufacture methamphetamine in violation of 21 U.S.C. § 846, and two counts of

manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). The court

sentenced Mr. Hollis to 262 months on counts one, six, and eight, to be served

concurrently. This court affirmed his conviction. See United States v. Hollis,

99-3233, 2000 WL 235250 (10th Cir. Mar. 2, 2000).

      Mr. Hollis now contends he received ineffective assistance of counsel

because his attorney refused to allow him to testify. Under the familiar two-prong

analysis of Strickland v. Washington, 466 U.S. 668 (1984), Mr. Hollis has the

burden of proving his counsel’s representation fell below an objective standard of

reasonableness and the deficiency prejudiced his defense. Id. at 687-88. He must



      1
        We deny COA as to all the other issues Mr. Hollis raises because we
conclude he has not “made a substantial showing of the denial of a constitutional
right” as to any of them. 28 U.S.C. § 2253(c)(2).

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also overcome the strong presumption that counsel’s decisions “might be

considered sound trial strategy.” Id. at 689 (quotation omitted).

      If Mr. Hollis’ counsel actually overrode his desire to testify, his counsel’s

conduct fell below an objective standard of reasonableness and would satisfy the

first prong of Strickland. See United States v. Teague, 953 F.2d 1525, 1534 (11th

Cir. 1992) (“Where the defendant claims a violation of his right to testify by

defense counsel, the essence of the claim is that the action or inaction of the

attorney deprived the defendant of the ability to choose whether or not to testify

in his own behalf. In other words, by not protecting defendant’s right to testify,

defense counsel’s performance fell below the constitutional minimum, thereby

violating the first prong of the Strickland test.”). Even if counsel overrode his

desire to testify, however, Mr. Hollis must show prejudice, which is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

      Mr. Hollis asserts via affidavit that he was prepared to admit the charges of

manufacturing methamphetamine in counts six and eight in hopes of getting the

jury to believe that he was innocent of the charge of conspiracy to manufacture

methamphetamine in count one. The district court noted there was an

overwhelming amount of evidence against Mr. Hollis on counts six and eight.

Even had he testified that he was innocent as to count one and the jury had


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acquitted him of that count, he would still be serving concurrent sentences of 262

months on each of counts six and eight, so the outcome of his trial with regard to

sentence would not have changed. Moreover, had the jury acquitted Mr. Hollis on

count one, the court could still have used the relevant conduct pertaining to count

one to sentence him. See United States v. Watts, 519 U.S. 148, 157 (1997)

(holding that conduct underlying charges for which defendant has been acquitted

may be relied on at sentencing if it has been proved by a preponderance of the

evidence). We thus conclude that Mr. Hollis has failed to show he was prejudiced

by his counsel’s performance.

      We also reject Mr. Hollis’s claim that his counsel was ineffective for

failing to call his co-defendant, Mr. Getman, as a trial witness. Mr. Getman’s

trial was pending at the time of Mr. Hollis’s trial. Although Mr. Getman now

asserts in his affidavit he would have testified in favor of Mr. Hollis had he been

called, we agree with the government that it is objectively unreasonable to believe

a co-defendant would admit his guilt in the very conspiracy for which he was

charged in order to absolve his co-defendant, rather than invoking his rights under

the Fifth Amendment. See United States v. Castorena-Jaime, 285 F.3d 916, 931

(10th Cir. 2001). In any event, as Mr. Getman admits in his affidavit, he

implicated Mr. Hollis in his plea agreement with the government, a fact of which

the district court was aware when it denied Mr. Hollis’ habeas petition.


                                         -4-
      Mr. Hollis’ claim that he was sentenced in contravention of the rules

announced in Apprendi is procedurally barred. He failed to raise an Apprendi

claim on direct appeal and he has not shown cause for that failure. Even

assuming counsel was constitutionally deficient for failing to raise Apprendi

either on direct appeal or in the petition for certiorari, Mr. Hollis has not shown

he was thereby prejudiced. Had Mr. Hollis’ counsel raised an Apprendi claim, the

outcome would have remained the same: the court would have been required to

run his sentences consecutively to the extent necessary to satisfy the minimum

guideline amount of 262 months. U.S. Sentencing Guidelines Manual § 5G1.2(d);

see also United States v. Price, 265 F.3d 1097, 1108-09 (10th Cir. 2001).

      Finally, Mr. Hollis’ claims the district court erred in determining the drug

quantity attributable to him has been procedurally defaulted. Nor are we

persuaded his counsel was ineffective for failing to raise this issue; Mr. Hollis

suffered no prejudice because his sentence would not have been affected. See

United States v. Hollis, 191 F. Supp. 2d 1257, 1267 & n.6 (D. Kan. 2002)

      For the foregoing reasons, we AFFIRM.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge



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