                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 13, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 12-6054
                                                       (W.D. of Okla.)
 v.                                            (D.C. Nos. 5:11-CV-00576-F and
                                                     5:08-CR-00210-F-1)
 LARRY COLLIER TAYLOR, JR.,

              Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **



      Larry Collier Taylor, Jr., a federal prisoner, seeks a certificate of

appealability to appeal the district court’s order dismissing his 28 U.S.C. § 2255

petition for post-conviction relief. We construe his filings liberally because he is

proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.




      *
         This order is not binding precedent except under the doctrines of law of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.
1991). Taylor claims, among other things, that his trial counsel was ineffective

because she prevented him from testifying at a suppression hearing.

      Finding no merit in Taylor’s application, we DENY it.

                                 I. Background

      On May 20, 2008, police officers in Houston, Texas pulled over a car

driven by Taylor after observing several traffic violations. Because Taylor could

produce no license, registration, insurance verification, or rental agreement, the

officers arrested him and impounded the car. An inventory of the car revealed a

firearm and approximately $17,000 cash, some of it bundled together with straps

bearing the name of the Peoples State Bank. The officers turned the investigation

over to the FBI, who linked this evidence to a car jacking and bank robbery in

Lawton, Oklahoma two weeks earlier.

      Taylor was charged in the Western District of Oklahoma with car jacking,

bank robbery, and using a firearm during a violent crime. His assigned counsel

was Teresa Brown. Taylor filed a motion to suppress the evidence obtained on

May 20, 2008, which was denied after an evidentiary hearing. A jury

subsequently found Taylor guilty on all counts. Taylor, with the help of a new

counsel, Jeffrey Byers, filed a motion for a new trial, arguing, among other

things, that his trial counsel rendered ineffective assistance at the suppression

hearing. The court denied the motion and sentenced Taylor to 181 months’

imprisonment.

                                         -2-
         For his direct appeal, Taylor changed counsel yet again. Taylor appealed

the district court’s ruling on the suppression motion, arguing that the police

inventory of the car violated the Fourth Amendment’s prohibition on

unreasonable search and seizure. He also contested the sufficiency of the

evidence supporting his car jacking conviction. But he did not directly appeal his

ineffective-assistance claim. We rejected Taylor’s arguments and affirmed his

convictions. See United States v. Taylor, 592 F.3d 1104, 1109 (10th Cir. 2010).

         Taylor then challenged his convictions pursuant to 28 U.S.C. § 2255,

arguing seven grounds for relief. Six of these grounds related to ineffective

assistance rendered by Teresa Brown, while the last ground claimed ineffective

assistance by Jeffrey Byers. The district court rejected Taylor’s § 2255 petition

and denied a certificate of appealability.

         In the present application for COA, Taylor maintains four of the seven

original grounds for relief, all against Brown: (1) failure to thoroughly cross-

examine Officer Bryan, one of the officers who participated in the traffic stop, at

the suppression hearing; (2) failure to contest the legality of the traffic stop; (3)

refusal to allow Taylor to testify at the suppression hearing; and (4) cumulative

error.




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                                 II. Discussion

      A. Standard of Review

      We may not grant a certificate of appealability unless “the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “To meet this standard, a petitioner must demonstrate that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Boutwell v. Keating, 399 F.3d 1203, 1211

(10th Cir. 2005) (internal quotation marks omitted).

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

show that (1) his counsel’s performance fell below an objective standard of

reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2)

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694. In analyzing the

first prong, we apply the strong presumption that “counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689.

      B. Grounds Previously Addressed

      Two of the grounds Taylor advances in support of his ineffective-assistance

claim were already adjudicated by the district court pursuant to his motion for a

new trial. On a collateral challenge to a conviction, we do not consider claims

that we have already considered and disposed of on direct appeal. United States

                                         -4-
v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Typically, we also do not consider

claims that could have been raised on direct appeal but were not, unless the

petitioner can demonstrate cause and prejudice for the default, or a fundamental

miscarriage of justice will result. United States v. Cervini, 379 F.3d 987, 990

(10th Cir. 2004).

      Ineffective-assistance claims present an exception to the typical rule.

Inmates are not required to raise ineffective-assistance claims on direct appeal,

but may raise them for the first time in a collateral proceeding. Massaro v.

United States, 538 U.S. 500, 504 (2003). But a defendant retains the option to

raise an ineffective-assistance claim in the direct appeal. Id.

      This exception raises the question: if a defendant opts to raise an

ineffective-assistance claim on direct appeal, can he then raise it again in a

collateral proceeding? We have answered with a qualified yes: a subsequent

ineffectiveness claim in a § 2255 petition is not barred if it is “based on different

grounds” than the ineffective-assistance claim brought on direct appeal. United

States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995); accord Yick Man Mui v.

United States, 614 F.3d 50, 56 (2d Cir. 2010). But see Peoples v. United States,

403 F.3d 844, 847 (7th Cir. 2005) (rejecting Galloway and holding that




                                         -5-
subsequent ineffective-assistance claims are barred, even if based on different

grounds). 1

      Here, two of the four grounds for Taylor’s ineffective-assistance claim

were already argued in his motion for a new trial before the district court. These

grounds related to Brown’s failure to adequately cross-examine government

witnesses and adequately contest the legality of the stop. While Taylor’s motion

for a new trial did not frame these grounds in precisely the same manner his

application for COA does, it was based on the same essential factual and legal

issues. See Yick Man Mui, 614 F.3d at 56 (requiring “all legal or factual

arguments to be made in the case of a particular strategy, action, or inaction of a

lawyer alleged to constitute ineffective assistance.”). Because Taylor raised these

issues in the district court, and then failed to raise them on direct appeal, the

procedural bar applies.

      That leaves two grounds that were not addressed in prior proceedings: (1)

Brown’s failure to allow Taylor to testify at the suppression hearing; and (2)

cumulative error by Brown. The cumulative-error ground is easily dismissed

because only one other ground remains; thus, the error cannot be cumulative.



      1
         Some states follow the rule that ineffective-assistance claims must be
raised on direct appeal if trial counsel and appellate counsel are different. In
habeas proceedings under § 2254, we enforce such rules insofar as they comport
with the Sixth Amendment. See English v. Cody, 146 F.3d 1257, 1261 (10th Cir.
1998). No such rule applies in the federal court system, however.

                                          -6-
      C. Brown’s Failure to Allow Taylor to Testify

      Taylor alleges Brown rendered ineffective assistance by preventing him

from testifying at the suppression hearing. According to Taylor, he first notified

Brown of his wish to testify during the suppression hearing itself, after listening

to the testimony of the officers who conducted the traffic stop. He claims Brown

dissuaded him from testifying by telling him:

      (1) the judge would not accept the [sic] his testimony over the
      officers; (2) it didn’t matter what the petitioner said because the
      judge’s mind was already made up; (3) that the judge would not let
      him prevail on the issue, because he had been caught with the money
      and the gun and that there was no way that the judge would let them
      be suppressed; and (4) that if he did decide to take the stand in
      contention to the officers’ testimony he would be charged with an
      obstruction.

Aplt. Br. at 12–13. Taylor claims Brown’s statements violated his constitutional

right to testify in his own defense.

      Taylor relies heavily on Cannon v. Mullin, 383 F.3d 1152 (10th Cir. 2004).

There, the petitioner alleged he told his counsel “[i]n more than one pre-trial

conference” that he wanted to testify at trial, and reiterated this request at the

start of the trial. Id. at 1170. His counsel, however, “became enraged,” told him

she would make the decisions, and that it was too late for him to testify because

he was not on the witness list. Id. at 1171. Additionally, when the government

rested its case and called on the defense, the petitioner prepared to get up to

testify, but counsel “quickly sprang out of the chair and said that the defense rests


                                          -7-
in order to cut [him] off.” Id. The district court denied petitioner’s habeas

petition without holding an evidentiary hearing, and petitioner appealed.

      We remanded for an evidentiary hearing. See id. at 1177. We found that

petitioner’s allegations, if true, would constitute “a dereliction of duty by

counsel,” because “counsel lacks authority to prevent a defendant from testifying

in his own defense, even when doing so is suicidal trial strategy.” Id. at 1171.

We also found a substantial probability of prejudice because the petitioner’s

“testimony, and his demeanor while testifying, could have special significance to

the jury” on the issue of mens rea. Id. at 1172. We recognized, however, that

counsel has an obligation to “discuss with the defendant the strategic implications

of choosing whether to testify, and should make a recommendation to the

defendant.” Id. at 1171.

      We agree with the district court that the facts here differ significantly from

Cannon. First, as far as Taylor alleges, he did not express his desire to testify

until the middle of the suppression hearing. Although Brown was required to

offer Taylor reasonable counseling, see Wimberly v. McKune, 141 F.3d 1187, *3

(10th Cir. 1998) (unpublished) (citing Lema v. United States, 987 F.2d 48, 52–53

(1st Cir. 1993)), the quality of counseling will necessarily suffer when a request

is sprung upon counsel at the last minute. Under such circumstances, advice

rendered in what are perhaps less-than-lawyerly terms does not constitute

ineffective assistance. Second, although Brown advised Taylor against testifying,

                                          -8-
she did not actually prevent him from doing so, as did the defense counsel in

Cannon. In addition, Brown’s warning regarding potentially being charged with

obstruction of justice was not unfounded, as the right to testify does not extend to

a right to testify untruthfully. See United States v. Alexander, 292 F.3d 1226,

1235 (10th Cir. 2002). Finally, the facts here do not show that Taylor was

unaware of his rights; to the contrary, he actually did testify at the suppression

hearing on a different matter.

      On the facts presented, we find Brown’s performance was “within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

Accordingly, we need not reach the issue of prejudice.

                                 III. Conclusion

      For the reasons stated above, we DENY Taylor’s application for a

certificate of appealability. Taylor’s motion to proceed in forma pauperis is

DENIED.

                                        ENTERED FOR THE COURT,


                                        Timothy M. Tymkovich
                                        Circuit Judge




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