                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 5 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

    v.                                                    No. 00-7052
                                                    (D.C. No. 99-CV-393-S)
    ALEKSANDER SMEKTALA,                                  (E.D. Okla.)

                  Defendant-Appellant.


                              ORDER AND JUDGMENT          *




Before BRISCOE , ANDERSON , and MURPHY , 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.

         Aleksander Smektala, a federal prisoner representing himself, appeals from

the denial of his petition for habeas relief under 28 U.S.C. § 2255. The district



*
      This order and judgment is not binding precedent, except under the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.
court denied appellant’s application for a certificate of appealability. He renews

his request in this court.

       Appellant is a Polish immigrant who was a trucker. He and his

passenger/co-defendant were convicted by a jury of possession with intent to

distribute in excess of 1000 kilograms of marijuana and conspiracy, in violation

of 21 U.S.C. §§ 841 and 846. According to his direct appeal, he swerved to avoid

a collision with another vehicle, and a large load of onions and marijuana spilled

out of his trailer.   United States v. Kulik , Nos. 97-7092, 97-7094, 1998 WL

436574, at **1 (10th Cir. July 30, 1998) (order and judgment). Appellant was

sentenced to concurrent terms of 188 months. We note that an interpreter was

provided for each co-defendant at trial. R., Vol. I, Doc. 8, at 6.

       In his § 2255 petition, appellant claims that he did not understand that

he had the right to testify at his trial even if his attorney advised against it.

In support of his argument, appellant attached three exhibits to his brief on

appeal. In the first exhibit, his own affidavit, he swears that the story he would

have told is that he was hauling onions, and had made an agreement to smuggle

illegal aliens in his truck. Appellant’s Br., Ex. A at 2-3. He does not mention

the marijuana at all, not even to claim he knew nothing about it.

       The second exhibit is a letter solicited by the attorney who filed appellant’s

§ 2255 petition in district court from appellant’s trial counsel, Jim McClure. In


                                           -2-
the letter, Mr. McClure says that there were some communication problems

between them during their pretrial conversations due to the language barrier.

Id. , Ex. B at 1. Mr. McClure states that he thought all the misunderstandings

were resolved, but at the time of writing was no longer sure about that.      Id.

He concludes that appellant decided not to testify, but may have thought he was

precluded from testifying.      Id. at 2.

       The third exhibit is Mr. McClure’s answers to interrogatories, in which he

states unequivocally that he explained to appellant his right to testify, and that the

decision that appellant would not testify was mutual and part of Mr. McClure’s

trial strategy.   Id. , Ex. C at 1-2.

       A claim of ineffective assistance of counsel is governed by the two-part

standard set out in Strickland v. Washington , 466 U.S. 668 (1984). First,

appellant must show that his counsel’s performance “fell below an objective

standard of reasonableness.”       Id. at 688. Second, appellant must show that “there

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

of the proceeding would have been different.”        Id. at 694.

       To the extent appellant is asserting that his former counsel was ineffective

for not calling him to testify, neither prong of    Strickland is met. It was not

objectively unreasonable for counsel not to call appellant because his proposed

testimony would not negate the drug charges and it would raise possible new


                                              -3-
charges. The first of these two bases also reflects upon the second prong. To the

extent appellant is claiming ineffectiveness for not effectively communicating his

right to testify, the first prong of   Strickland is not satisfied because counsel’s

letter, his interrogatory answers, and his obvious awareness of the presence

of interpreters at trial show that his performance was objectively reasonable.

We therefore do not reach the second prong.

       Appellant’s application for a certificate of appealability is denied. The

appeal is DISMISSED.



                                                         Entered for the Court



                                                         Michael R. Murphy
                                                         Circuit Judge




                                              -4-
