                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          December 6, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-5141
                                                (D.C. Nos. 4:15-CV-00237-CVE-PJC and
SAMMY JOE PERRYMAN,                                     4:11-CR-00100-CVE-1)
                                                              (N.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Sammy Perryman, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to challenge the dismissal of his 28 U.S.C. § 2255 motion. We

deny a COA and dismiss the appeal.

                                            I

      Perryman pled guilty to bankruptcy fraud and money laundering, after which a

jury convicted him of arson, mail fraud, and using fire and explosives to commit a felony.

These charges arose primarily out of Perryman’s attempt to burn down a health club he

owned in order to collect the insurance proceeds. He was sentenced to 180 months’

imprisonment, and we affirmed his convictions on direct appeal. United States v.

      *
         This order is not binding precedent, except under the doctrines of law of the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.
Perryman, 558 F. App’x 795 (10th Cir. 2014) (unpublished). Perryman subsequently

filed a § 2255 motion alleging ineffective assistance of counsel. The district court denied

relief and declined to issue a COA. Perryman now seeks a COA from this court.

                                            II

       A prisoner may not appeal the denial of relief under § 2255 without a COA.

§ 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard,

Perryman must demonstrate “that 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) (quotation omitted).

       To succeed on an ineffective assistance of counsel claim, a prisoner must

establish both “that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the

deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.

668, 687 (1984). To establish prejudice, a “defendant must show 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. “Strategic or tactical decisions

on the part of counsel are presumed correct, unless they were completely

unreasonable, not merely wrong, so that they bear no relationship to a possible

defense strategy.” Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001) (quotation,

citation, and alteration omitted).

                                             2
      In his first claim for relief, Perryman asserts that defense counsel was

ineffective for failing to introduce trial testimony and a report from an expert

witness, Dr. David Lilley, on the timing of the fire at the health club. Because

Perryman left his club at approximately 6:00 p.m. and the fire was not reported until

close to midnight, defense counsel had planned to argue that someone else must have

set the fire later that night. After learning of this strategy, the government solicited

an expert report from Lee McCarthy, which concluded that the fire could have been

set at 6:00 p.m. and smoldered for six hours. The district court granted defense

counsel’s motion in limine to exclude McCarthy’s report and testimony as not timely

disclosed. However, the court explained that if the defense introduced testimony

suggesting the fire could not have smoldered for six hours, the government would be

allowed to introduce McCarthy’s opinions as rebuttal evidence. After this ruling,

defense counsel retained Dr. Lilley as an expert witness but ultimately decided not to

present his report and testimony at trial. This, in turn, prevented the introduction of

McCarthy’s report and testimony.

      We agree with the district court that Perryman’s claim regarding Dr. Lilley

fails. In an affidavit submitted to the court, defense counsel states that he made the

strategic decision not to call Dr. Lilley because he believed the benefit of Dr. Lilley’s

testimony would be outweighed by the harm of McCarthy’s. This decision was not

“completely unreasonable.” Moore, 254 F.3d at 1239 (quotation omitted).

      Perryman also argues that trial counsel was ineffective for failing to introduce

payroll records to undermine a government witness’ testimony against him. A

                                            3
former health club employee testified at trial that prior to the fire Perryman asked to

borrow money from him, and then reduced his pay when he refused. Even assuming

counsel was ineffective for failing to obtain records that would have undermined this

testimony,1 Perryman cannot establish prejudice. Given the government’s substantial

evidence of Perryman’s financial problems, there is no reasonable probability that

rebutting this testimony would have affected the outcome of the trial. See Perryman,

558 F. App’x at 800 (“[T]he government’s circumstantial case was extremely

powerful.”).

      Finally, Perryman argues that counsel was ineffective, and his Sixth

Amendment right to confront witnesses was violated, because counsel failed to

subpoena the authors of the studies relied upon in McCarthy’s expert report. The

district court correctly concluded this argument is meritless: McCarthy’s report was

never introduced at trial, thus there could not have been any violation of the

Confrontation Clause. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309

(2009) (the Confrontation Clause guarantees “a defendant’s right to confront those

who bear testimony against him” (quotation omitted)). We similarly reject any

suggestion by Perryman that his counsel was ineffective for failing to introduce

McCarthy’s report in order to cross-examine him.




      1
         Perryman has not provided any evidence, beyond his conclusory assertions,
that the relevant payroll records exist.
                                           4
                               III

For the foregoing reasons we DENY a COA and DISMISS the appeal.




                                Entered for the Court


                                Carlos F. Lucero
                                Circuit Judge




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