                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES CO URT O F APPEALS
                                                                October 12, 2007
                                                  Elisabeth A. Shumaker
                            TENTH CIRCUIT             Clerk of Court




U N ITED STA TES O F A M ER ICA,

             Plaintiff - Appellee,                     No. 06-6373
                                                     (W .D. Oklahoma)
       v.                                      (D.C. Nos. CV-05-0299-Fand
                                                      CR -02-0036-F)
TO N Y DUO N G ,

             Defendant - Appellant.



                                      OR DER


Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.


      The matter is before this court on Appellant Tony Duong’s request for a

certificate of appealability (“COA”). Duong seeks a COA so he can proceed with

his appeal from the district court’s denial of the motion he brought pursuant to 28

U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(b) (providing a petitioner may not

appeal the denial of a § 2255 motion unless he first obtains a COA). Because

Duong has not made “a substantial showing of the denial of a constitutional

right,” this court denies Duong’s request for a COA and dismisses the appeal.

See id. § 2253(c)(2).

      Following a jury trial, Duong was convicted of drug and money laundering

offenses. On direct appeal, Duong raised three allegations: (1) the evidence was
insufficient to support his convictions, (2) the trial court erred by denying his

motion to reveal the identity of a confidential informant, and (3) the trial court

improperly allowed the admission of his tax returns and financial records. This

court rejected Duong’s allegations of error and affirmed his convictions. See

United States v. Duong, 85 Fed. Appx. 99 (10th Cir. 2003).

      Duong filed the instant § 2255 motion on M arch 16, 2005. In addition to a

claim his conviction was obtained by the unconstitutional failure of the

Government to disclose exculpatory evidence, Duong raised several allegations of

ineffective assistance of counsel, including assertions counsel (1) failed to

effectively utilize an interpreter, (2) failed to call key witnesses or present

exculpatory evidence, (3) failed to conduct an adequate pre-trial investigation,

and (4) failed to adequately cross-examine the Government’s key witness. Duong

also claimed the cumulative errors of his trial counsel effectively denied him

adequate counsel. After an evidentiary hearing, the district court denied D uong’s

motion, setting out its findings of fact and legal conclusions in a comprehensive

memorandum opinion and order. Specifically, the court ruled there was an “entire

failure of proof” on all issues except those related to the interpreter. As to that

claim, the court applied the test set out in Strickland v. Washington, 466 U.S. 668,

687 (1984), and concluded Duong was not entitled to habeas relief because he

failed to show his counsel’s performance fell below an objective standard of




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reasonableness. In the alternative, the court concluded Duong failed to carry his

burden of establishing he was prejudiced by his counsel’s performance.

      This court cannot grant Duong a COA unless he can demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Duong has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. M iller-El v. Cockrell, 537 U.S. 322, 338 (2003). Duong is not required

to demonstrate his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

      This court has reviewed Duong’s appellate brief, the district court’s

memorandum and order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in M iller-El and concludes Duong is not

entitled to a COA. Duong has wholly failed to sustain his burden of

demonstrating he was prejudiced by his counsel’s alleged deficient performance

in failing to effectively utilize the court-appointed interpreter. See United States

v. Orange, 447 F.3d 792, 796-97 (10th Cir. 2006) (“Because [a defendant] must

demonstrate both Strickland prongs to establish his claim, a failure to prove either

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one is dispositive.” (citation omitted)). Further, Duong has abandoned the other

four claims raised in his § 2255 motion by failing to include them in his appellate

brief.

         The district court’s resolution of Duong’s claims is not reasonably subject

to debate and the claims are not adequate to deserve further proceedings.

Accordingly, Duong has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This court denies his request for a

COA and dismisses this appeal.

                                         Entered for the Court




                                         Elisabeth A . Shumaker, Clerk




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