                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 19, 2017
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                     No. 16-1333
                                             (D.C. Nos. 1:15-CV-00993-RBJ and
 DANIEL S. PRIETO,                                 1:12-CR-00503-RBJ-2)
                                                          (D. Colo.)
              Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before KELLY, HOLMES, and BACHARACH, Circuit Judges.



      Defendant-Appellant Daniel Prieto was convicted of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2), and was sentenced to one hundred months’ imprisonment. Mr.

Prieto moved the district court to vacate his sentence under 28 U.S.C. § 2255,

arguing that the enhancement of his sentence under 18 U.S.C. § 924(e)(2)(B) was

unconstitutional in light of Johnson v. United States, --- U.S. ----, 135 S. Ct. 2551



      *
              This order and judgment is not binding precedent, except under the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.
(2015), and that he received ineffective assistance of counsel at trial. The district

court granted Mr. Prieto’s motion in part as to the Johnson claim, and reduced his

sentence to seventy months, but denied his motion as to the ineffective-assistance

claims.

      Mr. Prieto requests a certificate of appealability (“COA”) from this court

for review of two of his ineffective-assistance claims. Having carefully

considered his requests under the framework of Slack v. McDaniel, we conclude

that Mr. Prieto has made a “substantial showing of the denial of a constitutional

right,” and that the issues raised on appeal are “adequate to deserve

encouragement to proceed further.” 529 U.S. 473, 483–84 (2000) (first quoting

28 U.S.C. § 2253(c), then quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)). Therefore, we summarily grant Mr. Prieto’s application for a COA.

But, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district

court’s judgment on the grounds that Mr. Prieto has failed to show prejudice

arising from counsel’s alleged errors.

                                          I

      On August 3, 2012, a police officer in Greeley, Colorado pulled over a car

that Mr. Prieto was driving; loud music was emanating from the car and the

officer intended to issue a citation for violation of a noise ordinance. Mr. Prieto

had not stopped the car right away, raising the officer’s suspicions. When the

officer approached the car, he observed a glass pipe in the center console that he

                                          2
believed had been used for the consumption of methamphetamine and noted that

Mr. Prieto’s eyes were bloodshot and his speech was slurred.

      A second officer arrived at the scene, responding to the first officer’s call,

and asked Mr. Prieto’s passenger to get out of the vehicle while the first officer’s

dog conducted an exterior drug sniff. As soon as the passenger’s side door

opened, the second officer observed a black, semiautomatic handgun between the

passenger’s seat and the frame of the vehicle. The first officer drew his weapon,

pointed it at Mr. Prieto, and twice ordered him to put his hands on the steering

wheel. Mr. Prieto “began to slide his hands down the steering wheel” before he

complied with the officer’s command. Aplt.’s App., Vol. II, at 244 (Trial Tr.,

dated Mar. 11–12, 2013 & May 13, 2013).

      When the officers removed Mr. Prieto from the vehicle, the first officer

“immediately observed a silver-in-color firearm on the floorboard of the

. . . [driver’s] side[,] . . . directly below the steering wheel[,] in front of the gas

and brake pedals.” Id. at 245, 247. The magazine of the gun was loaded, and

there was a bullet in the chamber. Mr. Prieto was arrested, and police secured the

two guns and searched the vehicle.

      Shortly after Mr. Prieto’s arrest, his mother, Mercedes Prieto, arrived at the

scene and learned that her son and his passenger had been arrested as felons in

possession of firearms. Ms. Prieto quickly claimed that she owned both guns,

but, a few minutes later, told officers that she owned only the gun found on the

                                            3
driver’s side.

        Mr. Prieto was charged with being a felon in possession of a firearm and

ammunition, in violation of §§ 922(g)(1) and 924(a)(2). The only issue contested

at trial was whether Mr. Prieto knowingly possessed the firearm found beneath his

seat.

        An arresting officer testified that Mr. Prieto initially refused to comply

with the instruction to place his hands on the steering wheel, and that Mr. Prieto

began to slide his hands downwards, suggesting knowledge of a gun on the floor

of the car. The government also introduced audio clips from phone calls made by

Mr. Prieto from jail, in which he admitted that the gun was “in plain view” of the

officers. See Aplee.’s App., Vol. VIII (Ex. 6, Tr. of Audio Recording). Other

physical objects found in the car—a glass pipe, beer, cigarettes, mail, and

children’s CDs—suggested that Mr. Prieto was the primary driver of the car.

        Ms. Prieto was the only witness called by the defense. On cross-

examination and rebuttal, the government elicited (1) that she had changed her

story at the scene of the arrest, initially claiming to own both guns but then

claiming to own only one; (2) that she had lied to federal agents; (3) that she was

mistaken about the color of the gun found on the driver’s side of the car; (4) that

she was mistaken about the caliber of the gun found on the passenger’s side of the

car; (5) that she claimed to be the primary driver of the car, but none of the items

found in the car were hers; (6) that she and the sister of Mr. Prieto’s passenger

                                           4
harmonized stories about purchasing the guns; and (7) that, specifically, she told

the sister of Mr. Prieto’s passenger that she would “stick to the story no matter

what.” Aplt.’s App., Vol. II, at 537.

      Before us, Mr. Prieto argues that he was prevented from testifying at trial

regarding his ignorance of the gun because the district court advised him, under

People v. Curtis, 681 P.2d 504 (Colo. 1984), that his prior felony convictions

could be used to impeach him if he chose to testify (“Curtis advisement”). Mr.

Prieto understood the court to mean that all nine of his prior convictions could be

used, and the district court subsequently acknowledged that such an

understanding would have been reasonable. Further, the court found (and the

government concedes) that the Curtis advisement was incorrect and over-broad,

because only five or six of Mr. Prieto’s prior convictions would have been

admissible for impeachment purposes under Federal Rule of Evidence 609.

However, Mr. Prieto’s trial counsel failed to object to the Curtis advisement.

      Mr. Prieto claims that, but for counsel’s failure to object to the incorrect

Curtis advisement, he would have testified that he was unaware of the gun

beneath the seat. More specifically, he would have testified that he adjusted the

driver’s seat backwards after he entered the car because Ms. Prieto, who is

fourteen inches shorter, had last driven it, but that he did not notice the gun that

was revealed when he took this action. Mr. Prieto discussed introducing

photographs with trial counsel to show the position of the seat before and after he

                                          5
moved it and to demonstrate that the gun could have been concealed.

      Mr. Prieto was convicted by the jury, and the court subsequently sentenced

him to one hundred months in prison. His conviction and sentence were affirmed

on direct appeal. United States v. Prieto, 565 F. App’x 758, 764 (10th Cir. 2014)

(unpublished).

      Mr. Prieto filed a pro se motion under § 2255 on May 11, 2015, claiming

ineffective assistance of counsel. Mr. Prieto then filed a supplemental motion,

with the assistance of new counsel, on June 20, 2016, seeking relief from a

sentencing enhancement under the residual clause of the Armed Career Criminal

Act, 18 U.S.C. § 924(e)(2)(B), that was held unconstitutionally vague by Johnson,

135 S. Ct. 2551.

      Mr. Prieto claimed that his trial counsel was ineffective for failing to object

to the court’s over-broad Curtis advisement and for not reviewing incriminating

jailhouse calls introduced at trial.

      The district court held a hearing on Mr. Prieto’s § 2255 motion and granted

relief on his Johnson claim, reducing his sentence from one hundred months to

seventy months. The court, however, denied Mr. Prieto’s ineffective-assistance

claims. Applying Strickland v. Washington, 466 U.S. 668 (1984), the district

court found that Mr. Prieto had not suffered prejudice from either alleged

deficiency of representation.

      The district court found that Mr. Prieto’s testimony during the § 2255

                                         6
hearing—that he would have testified at trial, but for the faulty Curtis

instruction—lacked credibility, in part because (1) he was responding to leading

questions, (2) five or six of his nine prior convictions could have been used to

impeach him, and (3) trial counsel—though present at the § 2255 hearing—did

not testify (i.e, attest under oath) regarding Mr. Prieto’s desire to testify at trial.

The district court further found that, even if Mr. Prieto had testified in his own

defense, a different outcome was “extremely unlikely” given the weight of the

evidence against him. Aplt.’s App., Vol. III, at 38–39 (Tr. of Hr’g on Mot. to

Vacate under 28 U.S.C. § 2255, dated Aug. 8, 2016). In this latter regard, the

court found that Mr. Prieto failed to meet his burden of showing a reasonable

probability of a different outcome had counsel objected to the faulty Curtis

advisement.

       Furthermore, as to the alleged error related to counsel’s failure to review

the jailhouse calls, the court ruled that Mr. Prieto’s claim was time-barred, as it

was raised for the first time in the June 20, 2016 supplemental motion. The court

further found, in the alternative, that Mr. Prieto failed to show prejudice because

he offered no grounds for the court to believe that the calls would not have been

admitted into evidence, nor did he provide details to support his claim that he

could have mounted a more robust defense if counsel had reviewed the calls.

       Mr. Prieto timely filed a notice of appeal from the district court’s judgment.




                                            7
                                       II

      “In reviewing denial of a § 2255 motion for post-conviction relief where a

COA has been granted, ‘we review the district court’s findings of fact for clear

error and its conclusions of law de novo.’” United States v. Viera, 674 F.3d 1214,

1217 (10th Cir. 2012) (quoting United States v. Rushin, 642 F.3d 1299, 1302

(10th Cir. 2011)). “Claims of ineffective assistance of counsel are mixed

questions of law and fact, reviewed de novo.” Moore v. Gibson, 195 F.3d 1152,

1178 (10th Cir. 1999).

      To succeed on an ineffective-assistance claim, a defendant “must prove

deficient performance and prejudice . . . . To prove prejudice, [the defendant]

must show ‘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.’”

Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 741 (10th Cir. 2016) (quoting

Strickland, 466 U.S. at 694), cert. denied sub nom. Ryder v. Royal, --- U.S. ----,

137 S. Ct. 498 (2016).

                                       III

      Mr. Prieto argues, on appeal, that the district court erred in deciding that

his testimony at the § 2255 hearing—that he would have testified at trial had

counsel objected to the faulty Curtis advisement—was not credible. He further

argues that the district court erred in finding that he suffered no prejudice from

                                            8
the two alleged errors of trial counsel. Finally, he challenges the trial court’s

finding that his claim arising from counsel’s failure to review the jailhouse calls

was time-barred.

      We agree with the district court that Mr. Prieto has failed to show prejudice

arising from either of counsel’s alleged deficiencies. We need not reach any of

Mr. Prieto’s other arguments to properly resolve this case; therefore, we do not do

so. See United States v. Pam, 867 F.3d 1191, 1201 n.9 (10th Cir. 2017).

                                        A

      The district court found no prejudice arising from counsel’s failure to

object to the faulty Curtis advisement because, first, Mr. Prieto’s testimony at the

§ 2255 hearing—that he would have testified at trial—lacked credibility, and,

second, even if he had testified, the weight of the evidence was such that there

was no reasonable probability of a different outcome. The parties dispute the

propriety of the first of these findings.

      However, we need not decide the propriety of the district court’s finding

that Mr. Prieto’s testimony at the §2255 hearing lacked credibility. The district

court correctly found in any event that Mr. Prieto’s trial testimony would not have

raised a reasonable probability of a different result. That finding provides a

sufficient basis for us to affirm.

      Mr. Prieto claims he would have testified that he “did not know the gun

was in the vehicle,” and that he discussed with counsel introducing pictures of

                                            9
“where the [car] seat would be when [Mr. Prieto’s] mother was sitting in the

vehicle” compared to “where it would be when [he was] sitting in the seat” in

order to show that the gun could have been concealed at the time he sat down.

Aplt.’s App., Vol. III, at 13–14.

      However, even assuming that Mr. Prieto would have so testified, we

conclude that there is not a reasonable probability that the result of this

proceeding would have been different. As explicated supra, the government

presented very cogent and powerful evidence of Mr. Prieto’s guilt. 1 Furthermore,

the government could have introduced five or six of his past convictions to


      1
              In his argument to the contrary, Mr. Prieto relies heavily on the
Fourth Circuit’s decision in United States v. Blue, 957 F.2d 106 (4th Cir. 1992).
However, Blue is patently distinguishable. There, the Fourth Circuit found
insufficient evidence to support the defendant’s conviction, under § 922(g)(1), on
a constructive-possession theory, where a gun was found concealed beneath the
passenger’s seat of a car in which the defendant was the passenger. 957 F.2d at
106. Beyond the gun’s position, the only evidence offered by the government to
show that the defendant was aware of the gun was the fact—contested by the
defendant—that the defendant’s “shoulder dipped” towards the floorboard of the
car when an officer approached. Id. at 107–08. The court held that this “[fell]
outside, but just barely, the realm of the quantum of evidence necessary to
support a finding of constructive possession.” Id. at 108 (emphasis added). Here,
by contrast, the gun was not concealed, and the officer’s testimony that Mr.
Prieto’s hands slid down the steering wheel was not contested. Furthermore, the
Fourth Circuit underscored in Blue that the nexus between the defendant—a
passenger—and the car containing the gun was extremely weak, stating: “The car
in which the gun was found did not belong to Blue; in fact, no evidence indicated
that Blue had ever been in that car before.” Id. On the other hand, Mr. Prieto
was the driver of the car where the gun was found (not a passenger), and the
government’s evidence indicated that he was likely the primary driver. In light of
the foregoing distinctions, we believe that Mr. Prieto’s reliance on Blue is
misplaced.

                                          10
impeach and discredit him. And, notably, Mr. Prieto’s defense rested heavily on

his mother’s testimony that she owned the gun and had placed it in the car; yet,

Ms. Prieto’s credibility was resoundingly challenged on cross examination. Ms.

Prieto changed her story at the scene of the arrest, lied to federal agents, and

coordinated her testimony with the sister of the man arrested with Mr. Prieto.

Ms. Prieto’s claim of ownership of the gun was further discredited by her

inaccurate description of the gun’s color.

      We conclude that Mr. Prieto has not shown a reasonable probability that

counsel’s objection to the faulty Curtis advisement would have produced a

different result, even if it ultimately would have resulted in the jury hearing Mr.

Prieto’s testimony.

                                       B

      We also conclude that Mr. Prieto has not shown a reasonable probability

that counsel’s review of the incriminating jailhouse calls would have led to a

different outcome. More specifically, he has made absolutely no showing that the

court would have deemed the calls inadmissible or otherwise kept them from the

jury if his trial counsel had reviewed them. Mr. Prieto does argue that counsel

could have “diminish[ed] the impact” of the audio clips introduced at trial by

introducing “witnesses who could provide context or an alternative

interpretation,” Aplt.’s Opening Br. at 42, but Mr. Prieto does not identify these

witnesses or explain what favorable testimony they could have offered. Mr.

                                           11
Prieto’s claim that effective counsel could have diminished the impact of the

jailhouse calls, therefore, relies upon speculation. Accordingly, we agree with the

district court’s finding that Mr. Prieto failed to meet his burden of showing

prejudice arising from counsel’s allegedly deficient performance.

                                         IV

      Based on the foregoing, we AFFIRM the judgment of the district court.



                                       ENTERED FOR THE COURT



                                       JEROME A. HOLMES
                                       Circuit Judge




                                         12
