                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                  September 25, 2013
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 13-8054
                                            (D.C. Nos. 2:12-CV-00111-CAB and
 ROBERT SUMMERS,
                                                  2:09-CR-00099-WFD-2)
                                                         (D. Wyo.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.



      After a jury convicted Robert Summers of conspiracy to possess

methamphetamine with intent to distribute, a result this court affirmed on direct

appeal, Mr. Summers filed a motion under 28 U.S.C. § 2255. In his motion,

Mr. Summers alleged that his right to effective assistance of counsel at trial had

been denied. The district court disagreed, issued a detailed memorandum and

order denying Mr. Summers’s request, and denied Mr. Summers’s request for a

certificate of appealability (COA).



      *
        This order is not binding precedent except under the doctrines of law of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.
        Now before us, Mr. Summers renews his request for a COA. To succeed,

he must make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). And to do that, he must demonstrate “reasonable jurists

could debate 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) (internal quotation marks omitted).

        Our review of the case leads us to agree with the district court that Mr.

Summers has not crossed that threshold. To succeed on a claim of ineffective

assistance, a petitioner must demonstrate two things. First, he must show that his

attorney’s performance “fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must prove that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. Mr. Summers

offers a variety of theories why, in his view, his counsel’s performance meets the

test set forth in Strickland. The district court addressed each theory in depth and

found each wanting under Strickland’s standards. We agree with its reasoning in

full.

        For example, Mr. Summers argues that his counsel failed to object to a

“massive amount” of improper evidence. Aplt. Br. at 2. He points to twenty

pieces of evidence that he believes counsel should have objected to on grounds of

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hearsay, lack of foundation, or speculation. But as the district court noted, even

if Mr. Summers’s attorney had objected, almost all of the evidence would have

been held admissible. As for any testimony that might have been excluded,

moreover, Mr. Summers has failed to show how its absence would have changed

the outcome of his case.

      Alternatively, Mr. Summers contends that his counsel failed to conduct an

adequate voir dire. But this court has held that “[a]n attorney’s actions during

voir dire are considered to be matters of trial strategy,” which “cannot be the

basis” of an ineffective assistance claim “unless counsel’s decision is shown to be

so ill chosen that it permeates the entire trial with obvious unfairness.” Nguyen v.

Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997). The record does not permit such

a conclusion in this case. Mr. Summers complains that his attorney asked

prospective jurors only a handful of questions. But it turns out that counsel had

good reason for his abridged voir dire: the judge had already performed a lengthy

interrogation of the prospective jurors. The judge’s own voir dire, moreover,

incorporated questions provided by attorneys from both sides. And after the

judge was satisfied, he gave each attorney only fifteen minutes to pose his own

questions, a situation Mr. Summers can’t reasonably fault his counsel for. In

these circumstances, we do not believe that counsel’s voir dire fell below

Strickland’s objective standard of reasonableness.




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      Mr. Summers says his trial counsel failed to present an adequate opening

statement. But counsel’s statement, though brief, appears to have been grounded

in a reasonable trial strategy: Mr. Summers’s attorney sought to prime the jury

for his argument that the government simply didn’t have enough evidence to

prove Mr. Summers’s guilt. In addition, this court has held that even failing to

give any opening statement at all is not automatically proof of ineffective

assistance. See Clayton v. Gibson, 199 F.3d 1162, 1178 (10th Cir. 1999). Yet

that seems to be exactly the sort of inference Mr. Summers wishes us to draw.

      Mr. Summers accuses his attorney of failing to establish the actual dates of

his prior incarceration and release. This was a significant failing, Mr. Summers

says, because he was in jail during portions of the alleged conspiracy and couldn’t

have played any part in that conspiracy while incarcerated. But while counsel did

not establish at trial the exact dates Mr. Summers was incarcerated, counsel did

show his client was in prison at various points throughout this conspiracy.

Problematically too for Mr. Summers, it is undisputed that he was out of jail

during much of the alleged conspiracy, and he offers no reason why the time he

did spend behind bars would have precluded any participation by him in the

alleged conspiracy. Even had counsel performed as Mr. Summers says he should

have, we cannot see how this would have altered the outcome of the trial.

      Lastly, Mr. Summers argues that his attorney refused to allow him to

testify. This accusation, if true, would certainly satisfy Strickland’s “deficient

                                         -4-
performance” requirement. See Cannon v. Mullin, 383 F.3d 1152, 1171 (10th Cir.

2004). But as the district court noted, Mr. Summers cannot show prejudice. Mr.

Summers says he wished to testify that he wasn’t a drug dealer — only a drug

user — and that he couldn’t have participated in this conspiracy because he was

in jail. The difficulty is, the government presented overwhelming evidence from

many sources — including from several people who purchased drugs from Mr.

Summers — that would have directly contradicted Mr. Summers’s testimony. In

addition, had Mr. Summers testified there is little doubt that the government

would have introduced his prior conviction for methamphetamine distribution,

casting further doubt on his claim that he never sold drugs. In light of the totality

of the evidence presented and the potential impeachment evidence the government

possessed, we do not see any reasonable probability that the result of the trial

might have been different had Mr. Summers testified along the lines he now

proposes.

      The application for a COA is denied and the appeal is dismissed.


                                        ENTERED FOR THE COURT


                                        Neil M. Gorsuch
                                        Circuit Judge




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