                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 October 12, 2010
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 10-7036
 v.                                          (D.C. No. 6:09-CV-00391-RAW and
                                                   6:06-CR-00069-RAW-1)
 DYMOND CHARLES BROWN,                                  (E.D. of Okla.)

              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Dymond Charles Brown, a federal prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2255 petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253, we DENY his application for a COA and DISMISS this appeal.

      *
         This order is not binding precedent except under the doctrines of law of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.
      1
        Because Brown is proceeding pro se, we construe his filings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.1991).
                                   Background

      A jury convicted Brown of one count of knowingly and intentionally

possessing with intent to distribute in excess of five grams of a mixture or

substance containing a detectable amount of cocaine base in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B)(iii). We affirmed Brown’s conviction on direct

appeal. United States v. Brown, 271 F. App’x 791, 793 (10th Cir. 2008). Brown

then brought this pro se 28 U.S.C § 2255 petition, claiming 1) he received

ineffective assistance of counsel, and 2) the prosecution withheld exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

      The district court rejected both claims and dismissed the petition. The

court found Brown’s claim for ineffective assistance of counsel centered on his

contention that his counsel 1) failed to advise him of the foreseeable

consequences of rejecting a plea offer, 2) failed to present an actual innocence

defense, which compelled Brown to take the witness stand, and 3) failed to

adequately address information regarding an alleged relationship between

Brown’s ex-girlfriend and a witness. After reviewing the trial record, the district

court rejected each contention. The court concluded Brown maintained his

innocence and insisted on a jury trial, the evidence of guilt was overwhelming,

trial counsel’s conduct was within the realm of sound trial strategy, and counsel

cross-examined the witness regarding the alleged relationship. The district court

also determined Brown’s second claim concerning the alleged Brady violation

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was meritless because the alleged impeachment and exculpatory evidence was not

material.

                                       Analysis

      Brown’s request for a COA raises two issues that are substantially the same

as he raised before the district court. Brown first argues his trial counsel

provided ineffective assistance by failing 1) to explain the consequences of

rejecting a plea offer and proceeding to a jury trial, 2) to investigate fully the

allegations of witness impropriety, and 3) to plead an actual innocence defense.

Second, Brown claims the government failed to disclose impeachment and

exculpatory materials in violation of Brady.

A. Standard of Review

      “The issuance of a COA is a jurisdictional prerequisite to an appeal from

the denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596

F.3d 1228, 1241 (10th Cir. 2010). To receive a COA, Brown “must demonstrate

that reasonable jurists would find the district court's assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

B. Ineffective Assistance of Counsel

      To prevail on his ineffective assistance of counsel claim, Brown must

demonstrate 1) “counsel’s performance was objectively deficient,” and 2)

“counsel’s deficiency prejudiced the defense, depriving [Brown] of a fair trial

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with a reliable result.” United States v. Sanders, 372 F.3d 1183, 1185 (10th Cir.

2004). Brown “must overcome the strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance, and we are

reminded that there are countless ways to provide effective assistance of

counsel.” Id. (quotation and citation omitted). A petitioner can demonstrate

prejudice by showing “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984).

      After reviewing the record, we are convinced Brown has failed to establish

a debatable claim of ineffective assistance of counsel. As his trial counsel stated

in an affidavit, he advised Brown to plead guilty because of the potential adverse

consequences of proceeding to a jury trial. In addition, at trial and through this

appeal, Brown continues to assert his innocence. At trial, Brown’s counsel

effectively cross-examined the witness regarding any alleged relationship with

Brown’s ex-girlfriend. The witness acknowledged being acquainted with Brown’s

ex-girlfriend but denied having any relationship with her. Finally, the decision by

Brown’s counsel not to pursue an actual innocence defense in the face of

overwhelming evidence was within the realm of sound trial strategy.

C. Brady Violation

      A defendant seeking habeas relief for an alleged Brady violation “must

show that (1) the prosecution suppressed evidence; (2) the evidence was favorable

                                         -4-
to the accused; and (3) the evidence was material to the defense.” Snow v.

Sirmons, 474 F.3d 693, 711 (10th Cir. 2007) (citation omitted). The “touchstone

of materiality is a reasonable probability of a different result, which exists when

the government’s evidentiary suppression undermines confidence in the outcome

of the trial.” Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007) (quotation

and citation omitted).

      The alleged Brady material was information regarding an unrelated civil

claim against one of the witnesses. As the district court correctly noted,

information regarding the lawsuit was publicly available, and the government did

not withhold or suppress evidence of the lawsuit. Nor do we find the information

material in light of the overwhelming evidence against Brown. Brown has thus

failed to demonstrate a Brady violation.

                                    Conclusion

      For the foregoing reasons, we DENY Brown’s request for a COA and

DISMISS his appeal.

                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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