                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  August 18, 2009

                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 09-3112
 v.                                         (D.C. Nos. 2:08-CV-02549-JWL and
                                                  2:05-CR-20005-JWL-1)
 MICHAEL E. DIESEL,                                      (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Defendant-Appellant Michael Diesel, a federal inmate appearing pro se,

seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. 1 R. Doc. 129. Because Mr. Diesel has

not made “a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a certificate of appealability (“COA”) and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

      On August 29, 2006, Mr. Diesel was convicted by a jury of three counts of

tax fraud in violation of 26 U.S.C. § 7206(1). 1 R. Doc. 97 at 1. He was

sentenced to 42 months’ imprisonment followed by one year of supervised

release. 1 R. Doc. 97 at 2-3. On direct appeal, we affirmed his convictions and
sentence. United States v. Diesel, 238 F. App’x 398 (10th Cir. 2007)

(unpublished). On November 3, 2008, Mr. Diesel sought relief pursuant to

§ 2255, raising two claims: ineffective assistance of trial counsel and ineffective

assistance of appellate counsel. 1 R. Doc. 113 at 5-7. After the district court

denied his § 2255 motion, Mr. Diesel brought this appeal. 1 R. Doc. 130. Before

this court, Mr. Diesel argues that he was (1) denied effective assistance of trial

counsel; (2) denied effective assistance of appellate counsel; and (3) denied due

process through prosecutorial misconduct. 1 Aplt. Br. 2.

      In order to obtain a COA, Mr. Diesel must make a “substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack, 529 U.S. at 484; see Miller-El v. Cockrell, 537 U.S.

322, 338 (2003). Accordingly, to prevail on his ineffective assistance claims, Mr.

Diesel must show that it is reasonably debatable that his counsel rendered

deficient performance that fell below an objective standard of reasonableness and

that Mr. Diesel was prejudiced thereby. Strickland v. Washington, 466 U.S. 668,

687 (1984); Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002). There is

prejudice if there is a reasonable probability that, but for the deficient


      1
        Because Mr. Diesel waived his prosecutorial misconduct claim by not
raising it as an independent claim in the § 2255 motion before the district court,
we decline to consider it here. See United States v. Cook, 997 F.2d 1312, 1316
 n. 4 (10th Cir. 1993).

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performance, the result would have been different. Strickland, 466 U.S. at 694.

This standard applies to claims of ineffective assistance of appellate counsel as

well as to claims of ineffective assistance of trial counsel. United States v. Cook,

45 F.3d 388, 392 (10th Cir. 1995). After reviewing the record in its entirety, we

conclude that the district court’s assessment of Mr. Diesel’s claims is not

reasonably debatable.

      Most of Mr. Diesel’s arguments focus on a stipulation that he entered into

before trial, which stated that Mr. Diesel “effectively controlled the use and

disposition of [trust] funds for his own purposes.” 1 R. Doc. 115 at Ex. H, ¶ 2.

According to Mr. Diesel, the stipulation was intended to mean only that the trust

funds were not disbursed for the benefit of the beneficiary, not that he had made

use of the funds for personal purposes. Aplt. Br. 24. Mr. Diesel argues that his

trial counsel’s performance was deficient because counsel did not object to the

government’s use of the stipulation to show that Mr. Diesel had made use of the

funds for personal purposes and did not introduce the “proper” understanding of

the stipulation. Aplt. Br. 29-32. However, trial counsel did not render deficient

performance by not objecting to the government’s arguments. The government

had ample evidence that it could have introduced to show that Mr. Diesel in fact

used funds diverted into a trust for his own personal purposes. The stipulation

was tactical and consistent with the defense strategy of avoiding the introduction

of inflammatory evidence showing that Mr. Diesel ultimately used the funds to

                                         -3-
purchase a yacht and jet, which—though not titled in his name—were used for his

personal purposes. 2 See Bullock, 297 F.3d at 1044 (stating that “we give

considerable deference to an attorney’s strategic decisions”); Hale v. Gibson, 227

F.3d 1298, 1323 (10th Cir. 2000) (holding that defense counsel “made a

reasonable strategic decision”).

      Mr. Diesel also raises other arguments that we have considered and reject

as not reasonably debatable. For example, he argues that trial counsel was

ineffective by not objecting to Jury Instruction No. 14 (regarding the definition of

income) as well as Jury Instruction No. 17 (regarding good faith defense), Aplt.

Br. 33-35, and by not raising a good faith defense, Aplt. Br. 36-43. We reject

these arguments for substantially the same reasons as the district court. 3 Mr.

Diesel also argues that his appellate counsel was ineffective, in that counsel failed

to raise the argument on appeal that Jury Instruction No. 14 applied the wrong

      2
         Mr. Diesel argues that the evidence shows that, at worst, he should only
be liable for the “equivalent ticket value of his use of the[] assets” rather than the
full value of the assets. Aplt. Br. 25 n.11. The strength of the government’s
evidence, however, is sufficient such that we cannot say that, had counsel made
all the arguments urged by Mr. Diesel, there is a reasonable probability that the
jury would have reached a different result. Therefore, there is no showing of
prejudice. See Strickland, 466 U.S. at 694.
      3
         In particular, Mr. Diesel’s argument that his counsel did not raise a good
faith defense is groundless. Not only did the jury receive an instruction with
regard to the “good faith” defenses, but his counsel acknowledged at one point
that “[Mr. Diesel’s] state of mind is our entire defense.” R. Doc. 83 at 649-50.
Defense counsel also put on a witness—an attorney—to testify regarding the
advice he had given Mr. Diesel, R. Doc. 83 at 593-604, and stressed Mr. Diesel’s
state of mind during closing arguments, R. Doc. 83 at 708-10, 717-33.

                                          -4-
legal standard. Aplt. Br. 11, 13-22. Under our precedent, appellate counsel need

not raise meritless issues; in order to show that appellate counsel was ineffective,

there must be a reasonable probability that the argument would have resulted in a

different outcome. See Smith v. Workman, 550 F.3d 1258, 1268 (10th Cir. 2008);

Upchurch v. Bruce, 333 F.3d 1158, 1163-64 (10th Cir. 2003). We are not

persuaded that the district court’s conclusion that the argument was not

meritorious is reasonably debatable.

      Accordingly, we DENY a COA and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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