                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                     July 6, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                    TENTH CIRCUIT


 LAURANCE L. ELNICKI,

          Petitioner - Appellant,

 v.
                                                         No. 15-3128
                                             (D.C. No. 5:14-CV-03082-SAC-DJW)
 STATE OF KANSAS; ATTORNEY
                                                           (D. Kan.)
 GENERAL OF KANSAS; REX
 PRYOR,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.


      After Laurance Elnicki was convicted in state court for several state law

kidnapping and theft crimes, he filed a state habeas petition. In it, he claimed that

his trial attorney rendered constitutionally ineffective assistance by failing to

inform him of his constitutional right to testify at trial — and even refusing to

allow him to testify. See Strickland v. Washington, 466 U.S. 668, 686 (1984)


      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order is not
binding precedent except under the doctrines of law of the case, res judicata, and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.
(recognizing the right to effective assistance of counsel); Rock v. Arkansas, 483

U.S. 44, 51-52 (1987) (recognizing a criminal defendant’s right to testify at trial).

At an evidentiary hearing on this petition, Mr. Elnicki’s trial counsel stated that

he “absolutely” informed Mr. Elnicki of his rights and confirmed that the final

decision to testify rested with Mr. Elnicki. Testimony from Mr. Elnicki and his

wife and mother, on the other hand, sought to rebut that account. In the end, the

court found the attorney’s testimony more credible, a finding the Kansas Court of

Appeals affirmed. See Elnicki v. State, 301 P.3d 788, slip op. at 7 (Kan. Ct. App.

May 17, 2013) (per curiam) (unpublished table decision).

      Unsatisfied with the result in state court, Mr. Elnicki turned to federal

district court, renewing his habeas application there. But the district court saw

nothing unreasonable in the state court’s credibility determination and accordingly

found itself obliged to deny relief as well under 28 U.S.C. § 2254(d)(2). Neither

can we, as we must to permit further review, say this decision was “debatable.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the application for a

certificate of appealability is denied and this appeal is dismissed. See 28 U.S.C.

§ 2253(c). Mr. Elnicki’s motion to proceed in forma pauperis is also denied, and

he is reminded of his obligation to pay the filing fee in full.


                                        ENTERED FOR THE COURT

                                        Neil M. Gorsuch
                                        Circuit Judge

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