                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 21 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 99-7032
                                                           (E.D. Okla.)
 JERRY L. GRIST,                                      (D.Ct. No. 97-CV-168)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      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.



      Appellant Jerry Lee Grist appeals the district court’s decision dismissing


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
his motion filed under 28 U.S.C. § 2255 claiming ineffective assistance of

counsel. We grant Mr. Grist’s certificate of appealability 1 and affirm the decision

of the district court.



       In 1986, a jury convicted Mr. Grist of multiple criminal counts arising out

of an indictment involving a car theft operation. We affirmed his conviction and

sentence on direct appeal. Mr. Grist served his sentence, and after his release, a

jury convicted him of other criminal activity in 1994. The district court used his

1986 conviction to enhance his 1994 sentence.



       Thereafter, Mr. Grist filed his § 2255 motion claiming ineffective

assistance of counsel in his 1986 case due to an alleged conflict of interest arising

out of his attorney’s joint representation of him and one of the other co-

defendants, Lloyd (a/k/a Loyd) Callicoat. Specifically, Mr. Grist claimed his

attorney, Duane Miller, improperly failed to contact or call Mr. Callicoat as a

witness on his behalf for the purpose of impeaching the testimony of Ralph Crow


       1
          The district court made no ruling on Mr. Grist’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a certificate of appealability within thirty days after filing
of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d
1239, 1241 n. 2 (10th Cir. 1997), overruled on other grounds, United States v. Kunzman,
125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).


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(a/k/a Crowe), who testified he delivered stolen vehicles to Mr. Grist at Mr.

Callicoat’s business. Mr. Grist claimed his attorney did not want to involve Mr.

Callicoat after getting the charges against Mr. Callicoat dismissed.



       The district court conducted an evidentiary hearing to determine whether a

conflict of interest existed. 2 After hearing the witnesses, the district court

prepared a thorough and well-reasoned decision, concluding Mr. Grist failed “to

establish ineffective assistance on the part of his trial counsel based on conflict of

interest.” In so holding, the district court noted the parties offered conflicting

testimony at the hearing as to Mr. Miller’s reasons for not having Mr. Callicoat

testify. In resolving this conflict, the district court credited Mr. Miller’s

testimony that he asked Mr. Callicoat to testify on Mr. Grist’s behalf, but Mr.

Callicoat stated he did not want to testify, and if forced to, his testimony would be

detrimental to Mr. Grist. According to Mr. Miller, he relayed Mr. Callicoat’s

comments to Mr. Grist, advising him not to seek Mr. Callicoat’s testimony, and

Mr. Grist agreed with that advice. The district court concluded Mr. Miller did not

act out of a desire to protect Mr. Callicoat at Mr. Grist’s expense, but rather,


       2
         In his § 2255 motion, Mr. Grist raised other grounds for ineffective assistance of
counsel which the district court dismissed, and we affirmed. United States v. Grist, No.
97-7124, 1998 WL 536386 (10th Cir. Aug. 18, 1998) (unpublished disposition).
However, we remanded the issue of conflict of interest to the district court for an
evidentiary hearing. Id.

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made a reasoned determination as an experienced trial attorney about the efficacy

of Mr. Callicoat’s testimony, based upon: (1) Mr. Callicoat’s reluctance to

testify; (2) Mr. Callicoat’s warning his testimony would be detrimental; and (3)

Mr. Callicoat’s evasive grand jury responses which contradicted a Federal Bureau

of Investigation 302 investigative report containing Mr. Callicoat’s inculpatory

statements against Mr. Grist. The district court also noted it was unclear how

calling Mr. Callicoat to testify on behalf of Mr. Grist would jeopardize Mr.

Callicoat since he continued to deny involvement in the criminal activity, other

than knowing about Mr. Grist’s activities as outlined in the investigative report.



      On appeal, Mr. Grist raises the same conflict of interest argument raised in

his § 2255 motion. The question of whether Mr. Miller’s joint representation of

Mr. Grist and Mr. Callicoat involved a conflict of interest is a mixed question of

law and fact. Edens v. Hannigan, 87 F.3d 1109, 1113 (10th Cir. 1996) (citing

Strickland v. Washington, 466 U.S. 668, 698 (1984)). We review de novo the

district court’s determination of whether an actual conflict existed, and review for

clear error the district court’s resolution of the underlying facts, id., mindful of

our obligation to give due regard to the district judge’s determination of the

credibility of witnesses, weight afforded their testimony, and reasonable

inferences and conclusions drawn therefrom. United States v. Gama-Bastidas,


                                          -4-
142 F.3d 1233, 1239-40 (10th Cir. 1998). In order to establish ineffective

assistance of counsel, Mr. Grist must show his counsel’s performance was

deficient and the deficiency prejudiced his defense. United States v. Martin, 965

F.2d 839, 842 (10th Cir. 1992).



      However, special considerations apply in conflict of interest cases. 965

F.2d at 842. If Mr. Grist can show a conflict of interest actually affected the

adequacy of his representation, he will not need to demonstrate prejudice in order

to obtain relief. Id. In order to establish an actual conflict, the burden is on Mr.

Grist to show specific instances to support his contention of an actual conflict

adverse to his interest. Id. Generally, an attorney’s decision on whether to call a

particular witness is a tactical decision, and thus, a matter of discretion for trial

counsel. United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir.) (quotation

marks and citation omitted), cert. denied, 479 U.S. 836 (1986). Mr. Grist must

overcome the strong presumption that his attorney’s decision not to call Mr.

Callicoat “might be considered sound trial strategy.” Strickland, 466 U.S. at 689

(quotation marks and citation omitted).



      Keeping these legal standards in mind, we have reviewed the record in its

entirety and conclude Mr. Miller’s reasons for not calling Mr. Callicoat as a


                                           -5-
witness involved a reasonable, deliberate and tactical decision. Most notably, we

find it reasonable for Mr. Miller to assume Mr. Callicoat’s testimony would not

assist Mr. Grist, and more likely, would harm him, given: (1) the possibility of

Mr. Callicoat making a detrimental statement against Mr. Grist, as supported by

his inculpatory statements in the 302 investigative report; (2) Mr. Callicoat’s

conflicting statements on Mr. Grist’s culpability, when comparing his grand jury

testimony with the 302 investigative report; (3) his obvious lack of credibility

because of his conflicting statements; and (4) his vulnerability to impeachment on

cross-examination. 3 It appears Mr. Miller’s reasons for omitting Mr. Callicoat’s

testimony centered on these factors and not on protecting Mr. Callicoat, against

whom the charges had already been dropped and who consistently asserted his

own innocence, even though he initially provided information implicating only

Mr. Grist.



       In support of Mr. Miller’s statement that Mr. Grist agreed not to call Mr.


       3
         The § 2255 hearing occurred thirteen years after completion of the initial 302
investigative report and grand jury hearing in 1986. Consequently, none of the witnesses
retained full recall of the events at issue. We note, however, Mr. Callicoat’s inculpatory
remarks in the 302 investigative report and conflicting statements to the grand jury
support Mr. Miller’s statements as to Mr. Callicoat’s reluctance at that time to testify, his
potential to implicate Mr. Grist, and his impeachability and lack of credibility as a
witness. In addition, both Mr. Grist and Mr. Callicoat testified that Mr. Callicoat did not
want to testify at trial, similarly supporting Mr. Miller’s testimony to that effect.


                                             -6-
Callicoat as a witness, Mr. Miller testified as to his usual practice of advising the

court for the record of his objections to unfavorable witnesses his clients insist on

calling to testify, and stated he would have done the same if Mr. Grist insisted on

calling Mr. Callicoat to testify. The record also discloses that at trial, Mr. Miller

called at least thirteen witnesses to testify, as suggested by Mr. Grist, to aid in his

defense, thereby lending support to Mr. Miller’s contention he similarly contacted

Mr. Callicoat at Mr. Grist’s direction. In fact, Mr. Miller called two of those

witnesses for the purpose of discrediting Ralph Crow, a key witness whom Mr.

Grist wished to discredit with the testimony of Mr. Callicoat. Finally, a review of

Mr. Callicoat’s initial statement to federal authorities and his testimony before

both the grand jury and district court at the § 2255 hearing shows it is unlikely his

conflicting and highly impeachable testimony would have exonerated Mr. Grist on

the count at issue, given the inculpatory testimony of Mr. Crow, whom the jury

apparently found credible, despite witness testimony to the contrary.



      For these reasons, we grant a certificate of appealability and AFFIRM the

district court’s decision.

                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge



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