                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS                  May 22, 2014
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court



 JESSIE D. HUGHES,

          Petitioner - Appellant,
                                                        No. 13-3032
 v.                                            (D.C. No. 5:11-CV-03140-SAC)
                                                          (D. Kan.)
 KANSAS ATTORNEY GENERAL,

          Respondent - Appellee.




                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Proceeding pro se, 1 Kansas prisoner Jessie Hughes seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his habeas

petition. We now deny Mr. Hughes’s application for a COA and dismiss this


      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Hughes is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
matter. 2

                                         I

       In 2003, Mr. Hughes was convicted in Kansas state court of murder in the

second degree and sentenced to a term of 272 months. Mr. Hughes’s conviction

and sentence were upheld on direct appeal, and in September 2007, Mr. Hughes

filed a motion for post-conviction relief under Kan. Stat. Ann. § 60-1507 in the

District Court of Shawnee County, Kansas. The district court denied Mr.

Hughes’s motion, and the Kansas Court of Appeals affirmed. The Kansas

Supreme Court denied review. On July 21, 2011, Mr. Hughes filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District

Court for the District of Kansas. The district court denied this petition on the

merits and declined to issue a COA.

                                         II

                                         A

       Before a prisoner “who was denied habeas relief in the district court” may

appeal, he “must first seek and obtain a COA.” Miller-El v. Cockrell, 537 U.S.

322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). We may issue a COA “only

if the applicant has made a substantial showing of the denial of a constitutional



       2
             Mr. Hughes additionally asks us to appoint him counsel. Because of
our ultimate disposition of his request for a COA (i.e., our denial of it), we deny
his request for appointed counsel as moot.

                                         2
right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, an applicant must show

“that reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Allen v. Zavaras, 568 F.3d 1197,

1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))

(internal quotation marks omitted).

                                          B

       In his habeas petition, Mr. Hughes made a single claim for relief alleging

ineffective assistance of counsel. Under the Supreme Court’s two-part test set

forth in Strickland v. Washington, 466 U.S. 668 (1984), an ineffective-assistance-

of-counsel claim requires a showing (1) “that counsel’s representation fell below

an objective standard of reasonableness,” id. at 688, and (2) “that the deficient

performance prejudiced the defense,” id. at 687. In this case, because we

conclude that Mr. Hughes failed to satisfy the heavy burden of showing deficient

representation under Strickland’s first prong, we need not reach the question of

prejudice under its second.

       “[R]eview of counsel’s performance” under Strickland’s first prong

is “highly deferential.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)

(quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010)) (internal

quotation marks omitted). “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

                                          3
reasonable professional judgment.” Id. (quoting Dever v. Kan. State Penitentiary,

36 F.3d 1531, 1537 (10th Cir. 1994)) (internal quotation marks omitted). The

burden on a petitioner alleging ineffective assistance of counsel is even higher

when the alleged ineffective assistance resulted from an informed, strategic

decision: counsel’s “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Strickland,

466 U.S. at 690.

      A party who, like Mr. Hughes, asserts an ineffective-assistance-of-counsel

claim in a § 2254 case faces a still more difficult task, because the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”) constrains a habeas court’s

review of claims adjudicated on the merits in state court proceedings and

“demands that [such] state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). That is to say, habeas

review of ineffective-assistance claims adjudicated on their merits by a state court

is “doubly deferential,” Byrd, 645 F.3d at 1168 (quoting Knowles v. Mirzayance,

556 U.S. 111, 123 (2009)) (internal quotation marks omitted), because “[w]e

defer to the state court’s determination that counsel’s performance was not

deficient and, further, defer to the attorney’s decision in how to best represent a

client,” id. (alteration in original) (quoting Crawley v. Dinwiddie, 584 F.3d 916,

922 (10th Cir. 2009)) (internal quotation marks omitted). The question regarding

deficiency thus “is not whether counsel’s actions were reasonable. The question

                                          4
is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012)

(quoting Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 788 (2011)) (internal

quotation marks omitted).

                                           C

      Mr. Hughes stated in his habeas petition that his “sole claim” was that:

             trial counsel was ineffective . . . for failing to hire and utilize a
             ballistics expert to counter the State’s expert witnesses and to
             explain that the forensic ballistic evidence was not only
             inconsistent with the State’s theory of the case and the purported
             eye-witnesses offered by the State, but that the ballistics
             evidence at the crime scene rendered the State’s theory
             completely impossible.

R., Vol. 1, at 14 (Pet. for Writ of Habeas Corpus, filed July 21, 2011). The

federal district court denied Mr. Hughes’s petition, finding from its review of the

record that “[i]t was at least arguable that a reasonable attorney could decide to

forgo inquiry into additional forensics evidence under the circumstances here,” id.

at 112 (Mem. & Order, filed Jan. 8, 2013), and accordingly that the Kansas Court

of Appeals’s “conclusion that trial counsel’s strategy was not deficient under

Strickland was ‘well within the bounds of a reasonable judicial determination,’”

id. at 110 (quoting Richter, 131 S. Ct. at 789). We agree and find that reasonable

jurists could not debate the correctness of the district court’s holding.

      In reaching this conclusion, we note, as the Kansas Court of Appeals did,

that Mr. Hughes’s trial counsel has offered a convincing explanation of his

                                           5
strategic choice not to call a ballistics expert for the defense. See Hughes v.

Kansas, 246 P.3d 413, 2011 WL 420712, at *2–3 (Kan. Ct. App. 2011)

(unpublished table decision). At an evidentiary hearing held in connection with

Mr. Hughes’s state proceedings for post-conviction relief, his trial counsel

testified that he did not feel it was necessary to call his own expert to rebut the

State’s ballistics evidence because he believed he had established through his

examination of the deputy county coroner that the shots fired “could not have

been made in the . . . manner that the coroner said they were made because of the

. . . locations of the spent projectiles and the casings that were discovered.” Id. at

*2 (internal quotation marks omitted). Mr. Hughes’s trial counsel further testified

that he did not feel it was necessary to call an expert because he felt that the

coroner’s testimony for the State, in particular, “was so outside the bounds that

. . . I didn’t feel that an expert was necessary . . . . Sometimes you can take [the

prosecution’s] expert and make them our witnesses.” Id. (alteration in original).

      This court has independently reviewed the trial record, and we find no

reason to doubt the reasonableness of trial counsel’s strategic choices, let alone

the Kansas Court of Appeals’s assessment of the same, to which we owe

considerable deference. That being the case, it is plain that reasonable jurists

could not debate the correctness of the district court’s ruling, and accordingly, we

are obliged to deny Mr. Hughes’s request for a COA.




                                           6
                                     III

      For the forgoing reasons, we deny Mr. Hughes’s request for a COA and

dismiss this matter.



                                           Entered for the Court



                                           JEROME A. HOLMES
                                           Circuit Judge




                                      7
