                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                              MAY 29 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                        No. 97-5149
          v.                                              N.D. Oklahoma
 LOUIS ERNESTO SANTURIO,                             (D.C. No. 97-CV-368-C)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, 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); 10th Cir. R. 34.1.9. This cause is

therefore ordered submitted without oral argument.

      Petitioner, Louis Santurio, a federal inmate appearing pro se, requests a

certificate of appealability to appeal the district court’s dismissal of his motion to



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255. 1 We

deny the certificate and dismiss the appeal.



                                     BACKGROUND

       On October 13, 1992, Mr. Santurio and his codefendant, Carmen Serrano,

were stopped for a traffic violation, which ultimately led to a warrantless search

of the vehicle in which they were traveling and the seizure of 74 kg of cocaine.

Both were subsequently charged with possession with intent to distribute cocaine,

in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(ii), and aiding and abetting, in

violation of 18 U.S.C. § 2. Prior to trial, Mr. Santurio’s counsel filed a motion to

suppress the evidence obtained by this search, and, after an evidentiary hearing,

the motion was denied. The case was then tried to a jury. The court granted Ms.

Serrano a judgment of acquittal at the close of the government’s evidence, and

therefore the jury deliberated as to Santurio only. After the jury returned a guilty


       1
         Although Mr. Santurio filed his brief on February 11, 1998, he did not file an
application for a certificate of appealability and his brief did not discuss the issue. The
government then moved to dismiss the case, arguing that because Santurio had failed to
“brief any request for a certificate of appealability in this court” as required by this court’s
Emergency General Order of October 1, 1996, his appeal must be dismissed. An order of
this court was subsequently filed, referring the motion to this panel. Because pursuant to
Fed. R. App. P. 22(b), we may construe Mr. Santurio’s notice of appeal as a request for a
certificate of appealability, see Hoxsie v. Kerby, 108 F.3d 1239, 1241 (10th Cir.), cert.
denied, 118 S. Ct. 126 (1997), and because we generally construe pro se pleadings
liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we deny the government’s
motion to dismiss on these grounds.

                                              -2-
verdict, Santurio was sentenced to 120 months’ imprisonment followed by five

years’ supervised release, and a $30,000 fine was imposed. On direct appeal, we

upheld the district court’s denial of Santurio’s motion to suppress. See United

States v. Santurio, 29 F.3d 550 (10th Cir. 1994). He now brings this § 2255

petition, once again attacking the legality of the stop and search, and raising two

other issues. The district court denied both the § 2255 petition and Santurio’s

subsequent request for a certificate of appealability.



                                   DISCUSSION

      The court will issue a certificate of appealability when a petitioner makes a

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

§ 2253(c)(2). Mr. Santurio argues that: (1) the district court erred when it denied

his motion to suppress evidence; (2) the district court erred when it permitted

government witnesses to offer inaccurate testimony at trial; and (3) the district

court erred in failing to recognize “the total ineffectiveness” of his court-

appointed trial counsel and in denying his request for appointment of new

counsel.

      Mr. Santurio’s first two arguments are not properly before this court. As

indicated above, his Fourth Amendment claim has been previously considered and

disposed of by this court on direct appeal, and thus is procedurally barred. See


                                         -3-
United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (stating that where the

court of appeals has previously considered and disposed of issues on direct

appeal, a defendant may not raise these issues under § 2255).

       Mr. Santurio’s argument regarding inaccurate trial testimony presents new

issues that were not presented to or addressed by the district court in the § 2255

action below; therefore, we do not address it. See Walker v. Mather (In re

Walker), 959 F.2d 894, 896 (10th Cir. 1992) (stating that as a general rule, this

court will not consider on appeal an issue that was not raised below).

Furthermore, these issues could have been presented on direct appeal and were

not. 2 See United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (“A § 2255

motion is not available to test the legality of a matter which should have been

raised on direct appeal.”).

       Thus, we address only Mr. Santurio’s argument that he received ineffective

assistance of counsel. See United States v. Galloway, 56 F.3d 1239, 1240-41



       2
        When a defendant/petitioner fails to raise an issue on direct appeal, he is barred
from raising the issue in a § 2255 proceeding unless he establishes either cause excusing
the procedural default and prejudice resulting from the error, or, a fundamental
miscarriage of justice if the claim is not considered. United States v. Cox, 83 F.3d 336,
341 (10th Cir. 1996); see United States v. Frady, 456 U.S. 152, 167-68 (1982). A
colorable claim of factual innocence can be sufficient to establish a fundamental
miscarriage of justice, Cox, 83 F.3d at 341, and we acknowledge that in discussing this
argument, Santurio does allege that he is actually innocent of all the charges against him.
See Appellant’s Br. at 18, 22. However, Mr. Santurio’s claim is not colorable, and is
therefore insufficient to overcome the procedural default.

                                            -4-
(10th Cir. 1995) (stating that ineffective assistance of counsel claims are properly

brought in collateral proceedings and not on direct appeal). A claim of

ineffectiveness of counsel is a mixed question of law and fact which we review de

novo. Duvall v. Reynolds, Nos. 96-6329, 97-6299, 1998 WL 97748, at *4 (10th

Cir. Mar. 4, 1998).

      To succeed on a claim of ineffective assistance of counsel, a petitioner

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

standard of reasonableness” and was so prejudicial “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). The defendant/petitioner bears the burden of proving both

deficient performance and prejudice, see Brecheen v. Reynolds, 41 F.3d 1343,

1365 (10th Cir. 1994), and after a careful examination of the record, we conclude

that Mr. Santurio has failed to meet this burden.

      In essence, Mr. Santurio alleges that his counsel was ineffective for eight

reasons:

      1. Failing to hire an investigator, interview potential witnesses, or to
      otherwise conduct a proper investigation.
      2. Failing to argue pretextual stop.
      3. Failing to challenge prosecution witnesses, including Officer
      Hornbeck as to his ability to detect odors.
      4. Failing to present any evidence or witnesses at trial and waiving
      opening argument.


                                          -5-
      5. Failing to file objections to the PSR regarding the amount of drugs used
      to determine the base offense level.
      6. Failing to call the K-9 handler as a witness.
      7. Failing to call Ms. Serrano as a witness.
      8. Failing to present evidence of his insulin dependency or to argue
      his medical condition.

Appellant’s Br. at 4-6. We do not address the substance of these assertions,

however, because in some cases we proceed directly to the issue of prejudice.

United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993) (“The Supreme

Court has observed that often it may be easier to dispose of an ineffectiveness

claim for lack of prejudice than to determine whether the alleged errors were

legally deficient.”). This is such a case. We accordingly express no opinion on

whether the performance of Santurio’s counsel was deficient.

      With regard to the first five of the above allegations, Santurio makes only

the most general assertions of prejudice, arguing that he had a right to a pre-trial

investigation, that he was denied the justice to which he is entitled, that he has

satisfied the two-prong test of Strickland, and that he was deprived of a fair trial.

See Appellant’s Br. at 6-9. These nonspecific and conclusory statements are

insufficient to satisfy his burden under Strickland. See Stafford v. Saffle, 34 F.3d

1557, 1564-65 (10th Cir. 1994) (stating that vague and conclusory evidence is

insufficient to satisfy the prejudice prong of Strickland); United States v. Mealy,

851 F.2d 890, 908 (7th Cir. 1988) (stating that conclusory allegations cannot

satisfy the prejudice prong of Strickland); see also Hall v. Bellmon, 935 F.2d

                                          -6-
1106, 1110 (10th Cir. 1991) (stating that even pro se petitioners must allege

sufficient facts on which a recognized legal claim could be based, and conclusory

allegations will not suffice).

      Santurio does attempt to make specific assertions of prejudice as to the last

three of his allegations, but even these assertions are insufficient and ultimately

conclusory. First, he alleges that the K-9 handler was an essential witness

because he could have challenged the account of the search given by the arresting

officer. However, Mr. Santurio does not present any evidence as to what the K-9

handler would have said had he appeared at the evidentiary hearing or at trial,

thus making any finding of prejudice on this claim nearly impossible. See

Coleman v. Brown, 802 F.2d 1227, 1234 (10th Cir. 1986); Lawrence v.

Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) (stating that when an ineffective

assistance claim centers on a failure to investigate and elicit testimony from

witnesses, the petitioner must “demonstrate, with some precision, the content of

the testimony they would have given at trial.”(quotation omitted)). By failing to

show what testimony this witness could have given, Mr. Santurio cannot show

that there is a reasonable probability that but for counsel’s allegedly deficient

performance, the result of the trial would have been different. See Strickland,

466 U.S. at 694.




                                          -7-
       Second, presumably referring to Ms. Serrano, Santurio asserts that it was

error for his counsel not to call the witness that could present the only defense

available. See Appellant’s Br. at 6. Although Santurio does not specifically

allege what that defense would have been, he indicates later in his brief that Ms.

Serrano would have supported his version of the events surrounding the search of

the vehicle. 3 However, given the evidence against Mr. Santurio and the potential

complicity of Ms. Serrano, we do not think it unreasonable for counsel to have

made the tactical decision under her discretion not to call Ms. Serrano as a

witness at the evidentiary hearing. See United States v. Janoe, 720 F.2d 1156,

1162-63 (10th Cir. 1983). As for the trial, it is true that Ms. Serrano was

acquitted at the close of the government’s evidence and thus could have safely

testified in Santurio’s behalf. Santurio fails to recognize, however, that by the

time Ms. Serrano was acquitted, the court had already ruled on the legality of the

search. Because the legality of the search was not at issue during the trial, we are

confident that the result of the trial would not have been different had Ms.

Serrano testified.



       3
        In arguing the illegality of the search, Santurio refers the court to an affidavit Ms.
Serrano gave in December 1993, eight months after Santurio was sentenced. In this
affidavit, Ms. Serrano says, inter alia, that she did not smell “a strange odor” in the
vehicle, and that at one point “the policeman pushed [Santurio] back into the patrol car.”
R. Vol. I, Tab 44, Ex. G. She also indicates that at least some search of the vehicle was
conducted before the police officer asked Santurio to sign the consent form. Id.

                                              -8-
       Third, Santurio alleges that because of his lack of insulin during his

encounters with the arresting officer and then later that evening with several DEA

agents, the voluntariness of his answers was “diminished.” Appellant’s Br. at 4.

He does not present any evidence, however, that he was actually insulin

dependant at all, that he was insulin deprived at the time of the interviews, or that

a state of insulin deprivation did, or could, affect the voluntariness of his

responses. “[A] defendant has a ‘burden of supplying sufficiently precise

information,’ of the evidence that would have been obtained had his counsel

undertaken the desired investigation, and of showing ‘whether such information

. . . would have produced a different result.’” United States v. Kamel, 965 F.2d

484, 499 n.45 (7th Cir. 1992) (quoting United States ex rel. Cross v. DeRobertis,

811 F.2d 1008, 1016 (7th Cir. 1987)).

       Finally, Mr. Santurio requests a change of venue due to the district court’s

bias against him, asks that we remand for further departure due to mitigating

factors and grant him a safety-valve credit, and asks that we allow him to amend

his brief to supplement it with exhibits he has not yet received. Appellant’s Br. at

8, 21, 22. Because he has failed to raise these issues in anything other than a

conclusory manner, we decline to address them. 4 See Drake v. City of Fort


       4
        In any event, were we to address the merits of these requests, we would agree
with the district court that a safety-valve credit is not warranted under these
                                                                                (continued...)

                                             -9-
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite the liberal construction

afforded pro se pleadings, the court will not construct arguments or theories for

the [party] in the absence of any discussion of those issues.”).



                                   CONCLUSION

      Therefore, because Santurio has failed to make a substantial showing of the

denial of a constitutional right, the certificate of appealability is DENIED and the

appeal is DISMISSED.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




      4
       (...continued)
circumstances. See R. Vol. I, Tab 47 at 13. Also, we would deny Santurio’s requests to
supplement his brief and for a change of venue.

                                          -10-
