                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           August 20, 2010
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,

 v.                                                             No. 09-2206
                                                  (D.C. Nos. 1:08-CV-00479-RB-WDS and
 ALEJANDRO ESPINOZA, a/k/a Miguel                           2:04-CR-00852-RB)
 Angel Manzo,                                                    (D. N.M.)

           Defendant–Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


       Alejandro Espinoza a/k/a Miguel Angel Manzo, a federal prisoner proceeding pro

se, seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal of

his 28 U.S.C. § 2255 habeas petition. We deny a COA and dismiss the appeal.

                                              I

       In 2004, Espinoza was indicted for conspiracy to possess with intent to distribute

methamphetamine. At trial, Espinoza’s counsel posited that that he had not sold

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
methamphetamine but rather marijuana and perhaps cocaine. However, counsel made his

case only through cross-examination of government witnesses, his opening statement,

and his closing argument; the defense did not call any witnesses. At the close of the

government’s case, the defense moved for a mistrial. After the court denied Espinoza’s

motion, the jury re-entered the courtroom for instructions and to hear closing arguments.

      Before the court could instruct the jury, Espinoza interjected:

      You’re going to give me life without the possibility of parole, and you’re
      not going to allow my side to be heard. . . . I have some issues that have to
      be preserved for appeal. This is my life you’re talking about. You’re going
      to give me life without the possibility of parole . . . without allowing me to
      preserve these issues for appeal?

The court had the jury leave the room and admonished Espinoza for his outburst. After

being instructed to raise any concerns through his attorney, Espinoza contended that his

attorney was not following his instructions and addressed the court directly. Espinoza

raised a number of complaints both orally and in a note to the court. Defense counsel

then moved to re-open the case and present a law enforcement officer as a witness, but

the court denied the motion.

      Counsel for each side then made their closing arguments. Defense counsel

referred to a recorded telephone call between Espinoza and an informant in which the two

discussed drugs using coded language:

      [T]hat tape is clearly talking about two drugs. Although [the informant]
      insisted that, no, the only thing that that tape was talking about was one
      drug.. . .
      [W]hen you go back there, if you want to listen to the tape, listen to it


                                           -2-
       yourself—you’ll come to the conclusion that, yes, [the informant] was
       talking about meth on that tape or trying to talk about only meth on that
       tape, but [Espinoza] was talking about at least one other drug and maybe
       two other drugs.

       After deliberation, the jury convicted Espinoza. We affirmed on direct appeal.

United States v. Espinoza, 211 Fed. App’x 795 (10th Cir. 2007) (unpublished).

       In a timely filed § 2255 petition, Espinoza asserted that his trial counsel was

ineffective for preventing him from testifying on his own behalf, for failing to adequately

investigate and present evidence related to the defense theory, and for allegedly admitting

that Espinoza was guilty during closing argument. He also contended that appellate

counsel was ineffective for failing to raise these issues on appeal.

       Without holding an evidentiary hearing, the district court dismissed Espinoza’s

petition and denied him a COA. Espinoza then concurrently filed a notice of appeal and

a motion to alter or amend the judgment below. We abated the appeal pending the

district court’s resolution of the motion alter or amend. Espinoza’s motion to alter or

amend was then denied by the district court. With the district court proceedings

concluded, we now consider whether Espinoza may proceed on appeal. Because he

proceeds pro se, we will liberally construe his pleadings. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2255 without a

COA. § 2253(c)(1)(A). Espinoza may not obtain a COA unless he demonstrates “that

                                            -3-
jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). He has

failed to make such a showing.

                                              A

       Counsel provides ineffective assistance when his representation does not meet “an

objective standard of reasonableness” and “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). We will consider

each of Espinoza’s ineffective assistance claims in turn.

                                              1

       The district court rejected Espinoza’s claim that his attorney was ineffective for

denying him the right to testify on the grounds that Espinoza never indicated a wish to

testify, even after an invitation by the court to state his concerns, and that his waiver of

the right to testify was a tactical decision made jointly with his attorney. On appeal,

Espinoza does not argue that he informed the court he wished to testify. Instead, he

contends that his silence on the matter was insufficient to waive his right to testify, and

that both his attorney and the court prevented him from asserting the right.

       A waiver of the right to testify in one’s defense must be voluntary, knowing, and

intelligent. Harvey v. Shillinger, 76 F.3d 1528, 1536 (10th Cir. 1996). Because the


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choice whether to testify is often made in consultation with an attorney, violations of the

right to testify are “best treated” as ineffective assistance of counsel claims. Cannon v.

Mullin, 383 F.3d 1152, 1170 (10th Cir. 2004). The Supreme Court has long held that we

may not infer attorney misconduct simply because, in retrospect, a tactical decision

appears to have been misguided. See, e.g., Strickland, 466 U.S. at 689. However, the

ultimate decision whether to testify rests with the defendant, and counsel must not

prevent a determined defendant from testifying. See Cannon, 383 F.3d at 1171. In

evaluating when persuasion by counsel becomes coercion, we consider: (1) whether the

defendant knew of his right to testify or was informed of the right by counsel; (2) whether

counsel gave sound tactical advice regarding the choice not to testify; and (3) any threats

or intimidation used to influence the defendant. Wimberly v. McKune, No. 97-3133,

1998 WL 115953, at *3 (10th Cir. Mar. 16, 1998) (unpublished) (citing Lema v. United

States, 987 F.2d 48, 52-53 (1st Cir. 1993)). We will not overturn a district court’s finding

on the question without sufficiently detailed affidavits describing the manner in which

counsel coerced the defendant not to testify. See United States v. Meacham, 567 F.3d

1184, 1188 (10th Cir. 2009).

       Espinoza argues that trial counsel “refus[ed] to let him testify.” Specifically, he

alleges that, after his outburst, counsel advised Espinoza that if he sought to testify, the

judge might remove him from the courtroom. However, after this alleged coercion

occurred, Espinoza was invited to write down his objections to counsel’s handling of the


                                             -5-
case. Although Espinoza did not hesitate to raise myriad concerns, his purported wish to

testify was conspicuously absent from this list.

       Applying the factors from Wimberly, Espinoza has conceded he was aware of his

right to testify and has provided no evidence of threat or intimidation. Even if counsel’s

warning against insisting on testifying was poor advice, it does not rise to the level of a

threat. Additionally, any tension between his right to testify and his preference to remain

in the courtroom (which Espinoza refers to as a “Hobson’s choice”—a choice that is no

choice at all) was remedied when the court invited Espinoza to raise any concerns he had

with counsel in a note to the court. Consequently, no reasonable jurist would conclude

that Espinoza has adequately demonstrated that his attorney rendered ineffective

assistance with respect to waiver of the right to testify.

                                               2

       Espinoza also asserts the district court erred in determining that his attorney did

not render ineffective assistance by failing to adequately investigate the case. The district

court determined that Espinoza’s petition did not explain how, but for counsel’s alleged

error, the result of the proceeding would have been different. Notwithstanding this

pleading error, the district court persuasively explained that, in the absence of Espinoza’s

testimony, all of the evidence Espinoza wished his attorney to investigate and introduce

would have been inadmissible for lack of foundation. Espinoza makes no argument that

this evidence would have been admissible without laying a foundation with his own


                                             -6-
testimony, nor could reasonable jurists debate the district court’s conclusion. Because—

as is discussed supra—Espinoza waived his right to testify, Strickland’s prejudice prong

cannot be met. See 466 U.S. at 694.

                                             3

       The district court also rejected Espinoza’s claim that counsel was ineffective for

conceding his guilt during closing arguments. While acknowledging that counsel

conceded Espinoza dealt drugs of some sort, the district court made a factual

determination that counsel did not concede Espinoza dealt methamphetamine.

       A lawyer’s admission of his client’s guilt can fall below an objective standard of

reasonableness. See United States v. Williamson, 53 F.3d 1500, 1510-11 (10th Cir.

1995). Further, a complete admission by counsel of his client’s guilt triggers a

presumption that the defendant was prejudiced. United States v. Gonzalez, 596 F.3d

1228, 1239 (10th Cir. 2010) (citing the presumption of prejudice established in United

States v. Cronic, 466 U.S. 648, 659 (1984)). “Whether a complete admission of guilt

actually occurred is necessarily fact-intensive.” Id. (quotation omitted). In making this

determination, “[t]he focus must be on whether, in light of the entire record, the attorney

remained a legal advocate of the defendant who acted with undivided allegiance and

faithful, devoted service to the defendant.” Williamson, 53 F.3d at 1511(quotation

omitted). If an admission of guilt is not complete, however, a defendant must

demonstrate prejudice. Gonzalez, 596 F.3d at 1239. If the prejudice prong is unmet, a


                                            -7-
court need not investigate Strickland’s performance prong. Id. at 1233.

       No reasonable jurist would read counsel’s closing argument as a complete

admission of guilt. Although counsel’s statements were ambiguous, his closing argument

when read as a whole was clearly intended to convey to the jury that Espinoza was

involved in the marijuana trade, not the methamphetamine trade. Counsel therefore did

not abandon his role as the defendant’s advocate, and we may not presume prejudice

under Cronic. Nor does Espinoza demonstrate prejudice. Given the “overwhelming

evidence of guilt” presented by the government, omission of his counsel’s ambiguous

statements during closing would not have had any effect on the outcome. Gardner v.

Galetka, 568 F.3d 862, 874 (10th Cir. 2009). Espinoza, therefore, is not entitled to a

COA on this ground.

                                             4

       Espinoza argues that appellate counsel was ineffective for failing to argue any of

the above-mentioned issues on appeal. Because he conceded below that this argument is

without merit, we will not consider it on appeal. See O’Connor v. City & County of

Denver, 894 F.2d 1210, 1214 (10th Cir. 1990).

                                            B

       Espinoza raises two additional arguments unrelated to the effectiveness of counsel.

First, he argues that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by

failing to disclose material, exculpatory evidence in advance of trial. A Brady violation


                                           -8-
occurs when the government suppresses evidence favorable to the defense and, due to the

materiality of the evidence, prejudice ensues. Douglas v. Workman, 560 F.3d 1156, 1173

(10th Cir. 2009). Duplicative impeachment evidence is not material. Id. at 1174.

       The United States has conceded that it suppressed evidence that would have

impeached the credibility of its chief witness. Specifically, contrary to her protestations

on the stand that she had given up the drug, the government’s primary witness tested

positive for methamphetamine use mere weeks before testifying. In view of the

government’s admissions, the only remaining issue is whether the suppressed evidence

was material, and thus prejudicial. Given additional impeachment evidence offered

against the witness at trial and Espinoza’s own damning statements recorded by the

government, no reasonable jurist could find that the impeachment evidence here was

material. See id.

       Second, Espinoza alleges that the district court committed procedural error by

denying him an evidentiary hearing. We review a district court’s decision to deny an

evidentiary hearing for abuse of discretion. Hooks v. Workman, 606 F.3d 715, 731 (10th

Cir. 2010). As our discussion above indicates, each of Espinoza’s claims is “resolvable

solely on the basis of the existing record.” Id. Consequently, the district court did not

abuse its discretion in denying Espinoza’s request for an evidentiary hearing. See id.



                                            III


                                            -9-
     For the forgoing reasons, we DENY a COA and DISMISS the appeal. All

pending motions are DENIED.



                                   Entered for the Court



                                   Carlos F. Lucero
                                   Circuit Judge




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