                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   May 14, 2012
                                   TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 11-8100
 v.                                          (D.C. Nos. 2:10-CV-00119-ABJ and
                                                   2:07-CR-00238-ABJ-2)
 CLARENCE REX BURNELL,                                    (D. Wyo.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      In July 2008, Clarence Rex Burnell, a federal inmate appearing pro se,

received two concurrent life sentences for conspiracy to possess with intent to

distribute, and to distribute, fifty grams or more of methamphetamine, 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(viii), 846, & 851, and distribution of fifty grams or

more of methamphetamine and aiding and abetting, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(viii), 851; 18 U.S.C. § 2. This court affirmed on direct appeal.

United States v. Burnell, 336 Fed. App’x. 775 (10th Cir. 2009). The district court



      *
        This order and judgment is not binding precedent, except under the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.
then denied his motion to vacate, set aside, or correct sentence under 28 U.S.C.

§ 2255. Burnell v. United States, No. 10-cv-119-J, Dkt. 14, at 13 (D. Wyo. Oct.

31, 2011). Mr. Burnell appealed to this court and we granted him a certificate of

appealability (COA) on his right-to-testify claim only. We deny a COA on all the

other issues he raised because the district court’s resolution is not reasonably

debatable. See Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003).

         Mr. Burnell insists that he was deprived of his right to testify in violation

of the Assistance of Counsel Clause (largely relying on Rock v. Arkansas, 483

U.S. 44, 49 (1987) and Cannon v. Mullin, 383 F.3d 1152, 1171 (10th Cir. 2004)).

He claims that, if called, he could have explained to the jury’s satisfaction that he

was a user of drugs but not part of a conspiracy to sell them. The government

argues that even if his attorney’s conduct was deficient, Mr. Burnell cannot

“establish prejudice of any kind.” Aplee. Br. 9, 18. It claims that his “version of

the facts is patently inconsistent with logic and the evidence,” id. at 28, and that

taking the stand would have exposed him to Rule 404(b) evidence and

impeachment on two Wyoming convictions for distributing methamphetamine, id.

at 29.

         Upon careful review, we conclude that Mr. Burnell has failed to show that

there is a reasonable probability that the result of his trial would have been

different had he testified. Strickland v. Washington, 466 U.S. 668, 694. He says,

for instance, that his prior convictions would only “illustrate [his] propensity to

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acquire methamphetamine for personal use,” Aplt. Rep. Br. at 3, yet his 1998

sentence was for possession with intent to deliver, and delivery of,

methamphetamine. He claims his testimony would have shown that his girlfriend,

Barbara Davis, who implicated him but was never called, was a “liar and

manipulator.” Id. at 3-4. Yet in the district court he submitted an affidavit from

Davis stating that she was prepared to testify favorably in his behalf. Burnell v.

United States, No. 10-cv-119-J, Dkt. 14, at 8. Apparently he wishes to impeach a

witness he felt earlier was essential to his defense, but this untried path, whatever

its strategic merit, does not convince us that the result at trial would have been

different. Because Mr. Burnell has not made an adequate showing of prejudice,

the district court did not abuse its discretion in denying him an evidentiary

hearing on his ineffectiveness claim concerning the right to testify. We GRANT

Mr. Burnell’s motion to proceed on appeal IFP.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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