                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   October 6, 2011
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                     No. 11-3122
          v.                                             (D. of Kan.)
 DEAN MILTON DORMER,                         (D.C. Nos. 10-CV-4026-JAR and
                                                 5:02-CR-40157-JAR-7)
                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Dean Milton Dormer, a federal prisoner, seeks a certificate of appealability

(COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. Dormer is serving a 151-month

sentence for conspiring to distribute marijuana, and he seeks relief on the grounds

that he was denied effective assistance of counsel at trial. We conclude the

district court properly denied Dormer’s § 2255 motion.


      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Having jurisdiction pursuant to 28 U.S.C. § 1291, we DENY the application

for a COA and DISMISS the appeal.

                                 I. Background

      Dormer was involved in a wide-ranging conspiracy to ship marijuana from

the southwestern United States to the Cleveland, Ohio area for sale. The

conspiracy began to unravel in late 2002, when a private plane carrying 564

pounds of marijuana touched down for refueling in Salina, Kansas. Acting on a

tip, officers searched the plane and, after discovering the marijuana, arrested its

occupants. As the investigation unfolded, the scope and breadth of the conspiracy

became more widely known, leading to additional arrests. Dormer was arrested in

2003 after a failed drug transaction. 1

      In mid-2005, a federal grand jury returned a five-count Third Superseding

Indictment, charging Dormer with conspiring with each of ten other named co-

defendants to distribute controlled substances, including but not limited to more

than 1,000 kilograms of marijuana and more than 5 kilograms of cocaine, in

violation of 21 U.S.C. § 846. Counts two through four did not pertain to Dormer,

but he was named in count five, which charged criminal forfeiture of assets

attributable to the conspiratorial organization.



      1
         A more complete recitation of the underlying facts can be found in this
court’s decision on Dormer’s direct appeal. See United States v. Dormer, No. 06-
3310 (10th Cir. Nov. 21, 2008) (filed under seal).

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      Dormer was tried along with a co-defendant. Before trial, Dormer’s lawyer

filed a motion to sever Dormer’s trial from his co-defendant, which the court

denied without prejudice. Dormer’s attorney never renewed his motion to sever.

After trial, the jury returned a guilty verdict for both Dormer and his co-

defendant. In addition to finding Dormer guilty of conspiring to distribute

marijuana, the jury determined that he conspired to distribute “100 kilograms or

more but less than 1,000 kilograms” of marijuana. Accordingly, Dormer was

sentenced to 151 months’ incarceration.

      Dormer filed a direct appeal and we affirmed his conviction and sentence.

Dormer filed a petition for writ of certiorari with the United States Supreme

Court, which was denied. Dormer timely filed his § 2255 motion with the district

court. The district court denied his motion and Dormer now seeks a COA

pursuant to 28 U.S.C. § 2253(c)(1).

                                   II. Discussion

      Dormer argues he was denied effective assistance of counsel because his

attorney erroneously chose to cross-examine a witness despite having no strategic

reason for doing so.

      To obtain a COA, Dormer must demonstrate “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Making that showing

requires demonstrating that “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

                                          -3-
that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v.

Cockrell, 537 U.S. 322, 348 (2003) (“The COA inquiry asks only if the District

Court’s decision was debatable.”).

      A successful claim of ineffective assistance of counsel must meet the two-

pronged test set forth in Strickland v. Washington, 466 U.S. 668, 690 (1984).

First, the defendant “must identify the acts or omissions of counsel that are

alleged not to have been the result of reasonable professional judgment.” Id.

“The court must then determine whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally

competent assistance.” Id. This standard is “highly demanding,” Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986), and strategic or tactical decisions of counsel

are presumed correct unless they were “completely unreasonable, not merely

wrong, so that [they] bear no relationship to a possible defense strategy.” Fox v.

Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (internal quotation and citation

omitted). The reasonableness of the challenged conduct must be evaluated from

counsel’s perspective at the time of the alleged error; “every effort should be

made to ‘eliminate the distorting effects of hindsight.’” Edens v. Hannigan, 87

F.3d 1109, 1114 (10th Cir. 1996) (quoting Strickland, 466 U.S. at 689).

      Second, the defendant must show that his counsel’s deficient performance

actually prejudiced his defense by showing “there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. A defendant must demonstrate both

Strickland prongs to prevail, and a failure to prove one is dispositive. “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be followed.”

Smith v. Robbins, 528 U.S. 259, 286 n.14 (quoting Strickland, 466 U.S. at 697).

      Dormer argues that his trial counsel’s decision to cross-examine a

government witness was reversible error. Dormer concedes that an attorney’s

choice of questions during cross-examination or deciding not to call or cross-

examine a witness in the first place are tactical decisions and presumptively

reasonable. But he argues there was no strategic or tactical purpose for choosing

to cross-examine the witness, since the testimony on direct examination had not

harmed his case.

      Specifically, Dormer points to the following exchange as the most

troubling, in which the witness recounts her astonishment that Dormer would call

the police to report his vehicle stolen:

      Q.     [Dormer’s Trial Counsel:] Did [named co-conspirator] know
             who Dean [Dormer] was?

      A.     [Witness:] Yes.

      Q.     Because he had leased the car . . . because he had leased the
             car from Dean [Dormer], correct?

      A.     Correct.

                                           -5-
      Q.     You testified on direct that it didn’t make any sense to
             anybody. What was that a reference to?

      A.     I mean, being that Dean [Dormer] knows what everybody’s
             doing, why would he call the police when – I mean, he
             knew who he leased the car to. I mean, that was kind of
             silly on his behalf.

      Q.     Yes. Well, doesn’t that lead you to the conclusion that he
             didn’t know what was going on?

      A.     No, it doesn’t.

      Q.     Okay. But you had never heard of him, correct?

      A.     Not up until that point, no.

R. Doc. 687 at 774–75 (emphasis added).

      Dormer argues that, since the witness’s direct testimony was not damaging

to him, his trial counsel should have simply passed on the opportunity to cross-

examine her, which would not have allowed the above exchange to take place in

open court. The district court rejected this argument, concluding that like most

trial decisions, trial counsel’s decision whether to cross-examine and what

questions to ask was presumptively reasonable. See United States v. Pena, 920

F.2d 1509, 1520 (10th Cir. 1990) (choosing not to cross-examine a witness

constitutes a strategic choice); United States v. Snyder, 787 F.2d 1429, 1432 (10th

Cir. 1986) (finding counsel’s choice of cross-examination questions is a tactical

decision); United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981) (finding

that the decision whether to call a witness is a tactical one).


                                            -6-
       We agree with the district court that counsel’s cross-examination did not

violate either prong of Strickland.

       First, we are not convinced with Dormer’s argument that the witness’s

testimony on direct examination was benign, and not worthy of challenge. While

Dormer is correct that the crux of the witness’s testimony focused on Dormer’s

co-defendant, the witness did mention Dormer in the relevant portions of her

testimony focusing on the co-defendant’s arrest in December 2002. As she

testified:

       Q.    [Prosecutor:] Did he at any point tell you what happened with
             regard to the trip to Cleveland?

       A.     [Witness:] Yes.

       Q:    What did he tell you?

       A:    That Dean [Dormer] called the police and reported [a co-
             conspirator’s] car stolen.

       Q:    Did he tell you why?

       A:    He didn’t tell me. Nobody knew why he did that.

       Q:    Okay.

       A:    I don’t really think it makes sense to anybody.

R. Doc. 686 at 579 (emphasis added).

       While the witness did not go into detail about Dormer’s involvement, she

provided an opening that Dormer’s trial counsel tried to exploit. In other portions




                                         -7-
of the cross-examination not cited by Dormer, his trial counsel tries to push the

witness as to Dormer’s involvement:

      Q.       [Dormer’s Trial Counsel:] [In the aftermath of the co-
               defendant’s arrest] Did the name – the name Dean Dormer
               didn’t ring a bell with you at that point, right?

      A.       [Witness:] Right.

      Q.       And what did – did you say to [the co-defendant], “Well, who
               the heck is Dean Dormer?”

      A.       Yeah, I did.

      Q.       And [the co-defendant] responded what?

      A.       He’s the one who bought [a co-conspirator’s] car for him.

      Q.       . . . Did they think that Mr. Dormer worked for the police?

      A.       It was speculated, yes.

R. Doc. 687 at 768-69.

      It is obvious that Dormer’s trial counsel was trying to insert some distance

between the conspiracy and Dormer—a reasonable trial strategy to a conspiracy

charge. Just because the cross-examination eventually elicited testimony that

Dormer contends was harmful, this does not rise to the level of deficient

performance. See also Pickens v. Gibson, 206 F.3d 988, 1002 (10 th Cir. 2000)

(noting that “[t]rial strategy includes determining how best to cross-examine

witnesses”).




                                           -8-
      As the district court’s thorough order concluded, the “attorney’s decision to

clarify [the witness’s] remark that Dormer’s reporting the vehicle as stolen didn’t

make sense to anyone, was likely strategic. The fact that the answer hindered

Dormer’s case, does not warrant a finding of ineffective assistance.” R. Doc. 989

at 18; see also Strickland, 466 U.S at 689 (finding the existence of a “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, [in order to prevail,] the defendant must overcome

the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy”) (internal quotation marks omitted).

      Given that we find Dormer’s trial counsel’s performance was not deficient,

we need not address the second Strickland prong of prejudice. Romano v. Gibson,

239 F.3d 1156, 1181 (10th Cir. 2001) (“This court can affirm the denial of habeas

relief on whichever Strickland prong is the easier to resolve.”). But even if we

did, like the district court we doubt that given the other evidence in the record,

the cross-examination alone determined the outcome of trial and was therefore

constitutionally prejudicial to Dormer’s defense.

      Accordingly, we find the conclusions drawn by the district court’s order

were sound and not debatable for the purposes of granting a COA.




                                          -9-
                             III. Conclusion

     For the foregoing reasons, we DENY Dormer’s application for a COA and

DISMISS his appeal.

                                  ENTERED FOR THE COURT

                                  Timothy M. Tymkovich
                                  Circuit Judge




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