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

                             FOR THE TENTH CIRCUIT                            May 17, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-8002
                                                 (D.C. Nos. 2:15-CV-00089-NDF and
ERIC BEHRENS,                                          2:10-CR-00280-NDF-1)
                                                              (D. Wyo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      After his direct appeal proved unsuccessful, Eric Behrens sought relief under

28 U.S.C. § 2255. The district court denied Behrens’ § 2255 motion and his request

for a certificate of appealability (COA). Behrens now asks us for a COA so he can

appeal the district court’s decision. Because Behrens fails to “demonstrate that

reasonable jurists would find the district court’s assessment of” his Sixth Amendment

claim “debatable or wrong,” we deny Behrens’ request for a COA and dismiss the

appeal. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).




      *
         This order is not binding precedent, except under the doctrines of law of the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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                                    BACKGROUND

      Four days before Behrens’ trial on federal drug charges was scheduled to

begin, his trial counsel advised Behrens that he wasn’t prepared for trial and asked

whether Behrens would be “willing to postpone the matter.” United States v.

Behrens, 551 F. App’x 452, 460 (10th Cir. 2014) (unpublished) (Ebel, J., concurring

in part and dissenting in part). Behrens acquiesced and trial counsel moved for a

continuance, asserting he needed more time to prepare. Id.

      The trial court denied the motion for continuance. But when Behrens

personally told the trial court that he was concerned about counsel’s level of

preparedness, trial counsel admitted to the court that Behrens’ concerns were not

unfounded: trial counsel had yet to contact a previously identified witness whose

importance he initially overlooked. Id. at 460-61.

      By all indications, trial counsel’s failure to contact this potential witness was

an oversight, not a strategic decision. See id. at 457 (majority opinion) (“Whether this

delayed realization [regarding the witness’ importance] was the result of devoting

time to other matters or [trial counsel’s] own misapprehension is not clear.”). Even

the government recognized as much. See id. at 460-61 (Ebel, J., concurring in part

and dissenting in part). Nevertheless, the trial court characterized Behrens’ concerns

as implicating matters of trial strategy—matters it entrusted to counsel’s discretion.

Id. at 461. So when trial counsel sought to withdraw from the case, the district court

denied his request. But it did grant Behrens’ subsequent request to proceed pro se. Id.



                                           2
      The jury ultimately found Behrens guilty of one count each of conspiring to

possess with intent to distribute and to distribute methamphetamine, in violation of

21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A); and possessing methamphetamine with

intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Facing a

240-month prison sentence, Behrens appealed. In relevant part, he argued that his

decision to represent himself at trial was involuntary “because he was forced to

choose between appearing pro se or proceeding with unprepared counsel.” Behrens,

551 F. App’x at 456.

      The majority of a divided panel of this court disagreed. Although the majority

recognized that trial counsel admitted “he had yet to contact one witness whose

importance he had not yet realized,” it reasoned that counsel still had time—“albeit at

the last minute”—to contact that particular witness. Id. at 457. Thus, the majority

concluded, “counsel could have provided reasonably effective assistance,” and

Behrens’ decision to proceed pro se was voluntary. Id.

      After this court affirmed his convictions, Behrens sought post-conviction relief

under § 2255. In relevant part, he asserted that appellate counsel was ineffective in

failing to seek a limited remand to the trial court for purposes of expanding the

record to support Behrens’ involuntary-waiver-of-counsel claim.1 During that

remand, Behrens said, appellate counsel could have provided an affidavit or


      1
        Behrens also raised three additional grounds for relief in his motion. But in
his application for COA, Behrens focuses solely on his claim that appellate counsel
was ineffective in failing to provide an adequate record to support Behrens’
involuntary-waiver argument. Accordingly, we limit our discussion to that claim.
                                           3
testimony from trial counsel in which trial counsel admitted to being unprepared for

trial. Armed with that additional evidence, Behrens posited, the divided panel that

rejected his involuntary-waiver argument on direct appeal would have reached a

different result.

       The district court found Behrens’ ineffective-assistance-of-appellate-counsel

claim meritless and denied his § 2255 motion. And because the district court found

that Behrens failed to make “a substantial showing of the denial of a constitutional

right,” it also denied his request for a COA. R. vol. 1, 155 (quoting 28 U.S.C.

§ 2253(c)(2)).

                                      DISCUSSION

       Behrens argues that we should grant his request for a COA because the district

court erred in rejecting his ineffective-assistance-of-appellate-counsel claim. We may

grant Behrens’ request only if he “demonstrate[s] that reasonable jurists would find

the district court’s assessment of” that claim “debatable or wrong.” Slack, 529 U.S. at

484.

       In support of his Sixth Amendment claim, Behrens provided the district court

with a sworn affidavit in which he recounted a recent telephone conversation with

trial counsel. During that conversation, Behrens attested, trial counsel stated that if

“appellate counsel [had] been granted a limited remand,” trial counsel “would have

testified that he was unprepared for trial.” R. vol. 1, 35. This evidence, Behrens

argued, likely would have changed the outcome of his direct appeal.



                                            4
       The district court disagreed. First, it criticized Behrens for failing to provide

any evidence beyond his own sworn affidavit that suggested trial counsel might have

testified to his own unpreparedness. Second, it suggested that the record directly

contradicted that assertion.

       For instance, the district court noted, trial counsel explicitly informed the trial

court “that he was ready to proceed.” R. vol. 1, 150. Moreover, the district court

maintained, “trial counsel essentially said that [any witnesses he failed to contact]

were witnesses that Behrens wanted him to contact, but that counsel did not believe

were necessary.” Id. Thus, the district court reasoned that “nothing in the record . . .

suggest[ed] that Behrens’ trial counsel would provide a sworn affidavit stating he

was unprepared to go to trial, when he was unwilling to state on the record at the time

of the request for continuance that he was unprepared to go to trial.” Id. And because

the record contained no evidence suggesting trial counsel would have testified to his

own unpreparedness, the district court concluded, Behrens couldn’t demonstrate that

appellate counsel’s failure to expand the record to contain such nonexistent testimony

constituted deficient performance. See Strickland v. Washington, 466 U.S. 668, 687

(1984) (explaining that defendant seeking to establish ineffective assistance of

counsel must “[f]irst . . . show that counsel’s performance was deficient”).

       The district court’s analysis is problematic in two respects. First, we question

the district court’s finding that the only witnesses trial counsel said he failed to

contact were those he “did not believe were necessary.” R. vol. 1, 150. This

characterization of the record overlooks an undisputed fact: whether “the result of

                                             5
devoting time to other matters or his own misapprehension,” trial counsel admitted he

“had yet to contact one witness whose importance” trial counsel realized on the eve

of trial. Behrens, 551 F. App’x at 457.

       Second, we question the district court’s finding that the record belies Behrens’

assertion that trial counsel was willing to testify he was unprepared for trial. True,

trial counsel did initially state before voir dire that he was prepared to proceed. But

when the trial court questioned him about Behrens’ concerns, trial counsel was fairly

candid about his own unpreparedness: trial counsel acknowledged, “[T]here are

witnesses . . . that I haven’t yet called or interviewed”; admitted, “[F]or the last two

months I have been working on other matters”; and allowed, “I can understand

[Behrens’] concerns.” Behrens, 551 F. App’x at 460 (Ebel, J., concurring in part and

dissenting in part).

       Under these circumstances, Behrens’ sworn statement that trial counsel said he

was willing to testify to his own unpreparedness isn’t “wholly incredible.” United

States v. Estrada, 849 F.2d 1304, 1307 (10th Cir. 1988) (quoting Blackledge v.

Allison, 431 U.S. 63, 74 (1977)). Nor is it “contradicted by the files and records

before the court.” Putnam v. United States, 337 F.2d 313, 315 (10th Cir. 1964). Thus,

the district court should have accepted it as true for purposes of evaluating Behrens’

Sixth Amendment claim. See id. We must do the same. See Owens v. United States,

483 F.3d 48, 57 (1st Cir. 2007) (“If a district court dismisses a § 2255 claim without

holding an evidentiary hearing, we take as true the sworn allegations of fact set forth

in the petition ‘unless those allegations are merely conclusory, contradicted by the

                                            6
record, or inherently incredible.’” (quoting Ellis v. United States, 313 F.3d 636, 641

(1st Cir. 2002))).

       Nevertheless, we are constrained to agree with the district court’s

conclusion—however cursory it might be—that Behrens failed to establish there was

a reasonable probability he would have prevailed on direct appeal but for appellate

counsel’s failure to obtain a limited remand for the purpose of expanding the record.

See Strickland, 466 U.S. at 694 (“The 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.”); see also Smith v. Robbins, 528 U.S. 259, 285 (2000)

(explaining that two-part Strickland test applies to allegations of ineffective

assistance of appellate counsel).

       The only evidence that Behrens suggests appellate counsel might have added

to the record on remand is trial counsel’s statement that “he was unprepared for

trial.”2 R. vol. 1, 35. The problem is that Behrens fails to provide any details


       2
         Because Behrens proceeds pro se, we liberally construe his filings. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Thus, we might
generously read Behrens’ request for a COA to suggest that appellate counsel was
also ineffective in failing to expand the record to include an affidavit from Behrens
stating that, immediately before Behrens asked to proceed pro se, trial counsel
informed him that he still hadn’t contacted the witness he told the trial court he
would contact. The district court didn’t evaluate this argument—perhaps because
Behrens’ § 2255 motion didn’t squarely present it. And we typically won’t address an
argument advanced for the first time in a request for a COA. See United States v.
Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). In any event, Behrens doesn’t assert
that he told appellate counsel about trial counsel’s disclosure. Thus, we decline to
grant a COA on this basis. See United States v. Miller, 907 F.2d 994, 999 (10th Cir.
1990) (explaining that “[t]he reasonableness of an attorney’s decision not to conduct
an investigation is directly related to the information the defendant has supplied”
                                            7
regarding trial counsel’s alleged unpreparedness. It is possible that in admitting he

was unprepared, trial counsel was alluding to new and different deficiencies that

weren’t already before this court when a divided panel affirmed Behrens’

convictions. Or perhaps trial counsel was simply referring to facts the panel majority

had before it but found unproblematic, e.g., that trial counsel failed to realize that a

previously identified witness was important to his theory of the case until the eve of

trial, and that “for the last two months,” trial counsel had “been working on other

matters.” Behrens, 551 F. App’x at 460 (Ebel, J., concurring in part and dissenting in

part).

         Without more information about the testimony trial counsel might have been

willing to provide, we can’t say that reasonable jurists would debate the district

court’s conclusion that Behrens failed to establish there was a reasonable probability

that the result of his direct appeal would have been different but for appellate

counsel’s failure to expand the record to include that testimony. See Slack, 529 U.S.

at 484; Strickland, 466 U.S. at 694. Accordingly, we deny Behrens’ request for a




(quoting Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir. 1986))); see also Davis
v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (noting that we may deny COA on any
basis that finds support in the record).
                                            8
COA and dismiss the appeal.


                              Entered for the Court


                              Nancy L. Moritz
                              Circuit Judge




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