                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 15 1999
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 SANDRA MARSH,

           Petitioner - Appellant,
 vs.                                                    No. 99-2097
                                              (D.C. No. CIV-97-595-BB/RLP)
 PENNY LUCERO; ATTORNEY                                  (D.N.M.)
 GENERAL STATE OF NEW
 MEXICO,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Ms. Marsh seeks to appeal from the denial of her habeas petition, 28 U.S.C.

§ 2254, challenging her state conviction for cocaine trafficking. After an

evidentiary hearing, the magistrate judge, whose findings and recommendations

were adopted by the district court, dismissed the action with prejudice. On


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
appeal, Ms. Marsh contends that she received ineffective assistance of counsel

because her trial counsel failed to properly impeach the prosecution’s key

witness, Edgar Millican.

      Our review of an ineffective assistance claim is de novo, however, factual

findings made by the magistrate judge in the course of an evidentiary hearing on

such a claim may be overturned only upon a showing of clear error. See Romero

v. Tansy, 46 F.3d 1024, 1028 (10th Cir. 1995). In order to prevail on a claim of

ineffective assistance of counsel, Ms. Marsh “must prove that counsel’s

performance was constitutionally deficient and that counsel’s deficient

performance prejudiced the defense, depriving the petitioner of a fair trial with a

reliable result.” Boyd v. Ward, 179 F.3d 904, 913 (10th Cir. 1999) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). This burden requires proof

that counsel’s actions were “completely unreasonable, not merely wrong.” Boyd,

179 F.3d at 914.

      Ms. Marsh relies upon two incidents to support her claim. First, she claims

that counsel failed to impeach a key prosecution witness about a reprimand

received from a prosecutor for false testimony. After conducting an evidentiary

hearing, the magistrate judge found that the reprimand incident never occurred.

See R. doc. 32 at 4, ¶ 7 (“I do not find [this] version of events credible.”).

Plainly, whether the incident occurred was controverted; the factual finding


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cannot be clearly erroneous.

      Ms. Marsh also challenges counsel’s failure to impeach Mr. Millican about

his driving record and his relationship with Dennis Marsh, Ms. Marsh’s

ex-husband. At the evidentiary hearing, counsel “testified that he had not

considered [the witness’] driving record to be sufficiently important to warrant an

investigation.” Id. at ¶ 6. Based upon the record, such a determination was not

“completely unreasonable.”

      The findings of the magistrate judge were not clearly erroneous. Because

Ms. Marsh has failed to meet her burden under the Strickland test, we DENY her

request for a certificate of appealability and DISMISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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