                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 14, 2011
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court


 UNITED STATES OF AMERICA,
              Plaintiff–Appellee,
                                                        No. 10-4094
 v.                                         (Case Nos. 2:09-CV-01106-DAK and
                                                  2:06-CR-00111-DAK-1)
 SAUL GARCIA MACIAS,                                     (D. Utah)
              Defendant–Appellant.


          ORDER DENYING A CERTIFICATE OF APPEALABILITY *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Appellant, a pro se federal prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2255 habeas petition, which raised a

claim of pre-trial ineffective assistance of counsel. In 2006, Appellant was

charged with possession of drugs and a false alien registration card. He filed a

motion to suppress, alleging violations of his Fourth Amendment rights in the

search of his truck. After a hearing, a magistrate judge issued a report

recommending denial of Appellant’s motion. The district court adopted the

report, and Appellant later pled guilty to all charges. His conviction and sentence



      *
        This order is not binding precedent, except under the doctrines of law of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.
were upheld on direct appeal. See United States v. Macias, 306 F. App’x 409

(10th Cir. 2008).

      Appellant then filed a habeas petition in the district court, alleging his pre-

trial counsel failed to call Appellant to testify at the hearing for his motion to

suppress and raise various other issues at the hearing. The district court denied

Appellant’s habeas petition, correctly applying the Strickland standard to find that

“[Appellant’s] counsel performed in accordance with professional norms and that

his counsel’s actions did not in anyway prejudice [Appellant].” (Doc. 4 at 2); see

also Strickland v. Washington, 466 U.S. 668, 688 (1984).

      To obtain a certificate of appealability, Appellant must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, he must 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. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).

      In his arguments to this court, Appellant bases his ineffective assistance

claim principally on the argument that his attorney should have called him to

testify at the suppression hearing. He also argues his attorney should have made

several additional arguments, including that the state trooper’s search of

Appellant’s car exceeded the scope of consent and that Utah’s drug interdiction

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procedures are unconstitutional.

      After thoroughly reviewing the record on appeal, Appellant’s filings in this

court, and the district court’s order, we agree with the district court that Appellant

has not shown his trial counsel’s performance was deficient or prejudicial under

the legal standard in Strickland. In his memorandum in support of Appellant’s

motion to suppress, and again at the hearing, Appellant’s attorney presented many

arguments in favor of suppression, including several which overlap with the

additional arguments Appellant now claims on appeal that his attorney failed to

make. At the hearing, Appellant’s attorney also elicited substantial testimony on

cross examination. Moreover, even if Appellant had testified on his own behalf,

the countervailing evidence presented at the suppression hearing still offered

substantial support for the government’s arguments.

      For the foregoing reasons, and for substantially the same reasons stated by

the district court, we conclude that reasonable jurists would not debate the

dismissal of Appellant’s claims. We therefore DENY Appellant’s request for

COA and DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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