                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 4 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 03-2136
                                                (D.C. No. CIV-01-423 WJ/DJS)
    TIMOTHY M. BEERS,                                     (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and ANDERSON , Circuit Judges, and             KANE , ** Senior
District Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
       In this action pursuant to 28 U.S.C. § 2255, a Certificate of Appealability

(COA) was granted as to the following issues:

       1) Whether Mr. Beers’ due process rights were violated by the ineffective
       assistance of his trial counsel in failing to inform him of the nature of the
       plea bargain offered by the government; and

       2) Whether Mr. Beers’ due process rights were violated by the ineffective
       assistance of his trial counsel in denying him his right to testify on his own
       behalf.

Having reviewed these issues in light of the entire record, we affirm.   1



       After a jury trial, Mr. Beers was found guilty of one count of kidnapping in

violation of 18 U.S.C. § 1201(a)(1) and coercion and enticement to engage in

prostitution in violation of 18 U.S.C. § 2422(a). The court sentenced Mr. Beers

to 188 months imprisonment, and this court affirmed the conviction,          see United

States v. Beers , 189 F.3d 1297, 1304 (10th Cir. 1999).

       Mr. Beers now contends he received ineffective assistance of counsel

because his attorney did not inform him of the nature of a plea bargain offered

early on by the government and did not attempt to persuade him to accept it.

Mr. Beers further maintains that his trial counsel denied him his right to testify on

his own behalf.



1
       We deny COA as to all the other issues Mr. Beers raises because we
conclude he has not “made a substantial showing of the denial of a constitutional
right” as to any of them. 28 U.S.C. § 2253(c)(2).


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       A magistrate judge held an evidentiary hearing on Mr. Beers’ § 2255

motion after which he recommended that the motion be denied. The district court

summarily adopted the magistrate judge’s proposed findings and recommended

disposition, and this appeal followed. Our jurisdiction arises under 28 U.S.C.

§§ 1291 and 2253(a).

       “The district court’s finding of ineffective assistance of counsel presents a

mixed question of fact and law we review      de novo, although we accept the district

court’s factual findings unless clearly erroneous.”    United States v. Blackwell ,

127 F.3d 947, 955 (10th Cir. 1997). Under the familiar two-prong analysis of

Strickland v. Washington , 466 U.S. 668 (1984), Mr. Beers has the burden of

proving his counsel’s representation fell below an objective standard of

reasonableness and the deficiency prejudiced his defense.      Id. at 687-88.

       After hearing the evidence, the magistrate judge found the testimony of Mr.

Beers’ first attorney, Mr. Marshall Aungier, more credible than that of Mr. Beers.

We therefore cannot conclude the magistrate was clearly erroneous in finding Mr.

Beers failed to establish that the terms of the government’s favorable plea bargain

were not conveyed to him or that Mr. Aungier failed to counsel him to accept it.

Because Mr. Aungier’s performance was not deficient, the assistance he rendered

to Mr. Beers was not ineffective.    See id. at 687.




                                            -3-
       As for the second issue, if Mr. Beers’ trial counsel actually overrode his

desire to testify, his counsel’s conduct fell below an objective standard of

reasonableness and would satisfy the first prong of     Strickland. See United States

v. Teague , 953 F.2d 1525, 1534 (11th Cir. 1992) (“Where the defendant claims a

violation of his right to testify by defense counsel, the essence of the claim is that

the action or inaction of the attorney deprived the defendant of the ability to

choose whether or not to testify in his own behalf. In other words, by not

protecting defendant’s right to testify, defense counsel’s performance fell below

the constitutional minimum, thereby violating the first prong of the   Strickland

test.”). Even if counsel overrode his desire to testify, however, Mr. Beers must

show prejudice, which is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       With respect to whether Mr. Beers’ two trial attorneys denied him his right

to testify, we further agree with the magistrate judge that, even if Mr. Beers’

counsel had prevented him from testifying and thus rendered ineffective

assistance, Mr. Beers has failed to show prejudice from his counsel’s

performance. The evidence Mr. Beers sought to introduce, particularly the

evidence attempting to demonstrate that Mr. Beers had treated his kidnap victim

well, would almost certainly have led to the introduction by the prosecution of


                                            -4-
highly damaging evidence that Mr. Beers had abused his young victim. Evidence

of Mr. Beers’ long criminal history, including a state conviction on pimping

charges, and the tape of a telephone conversation in which Mr. Beers threatened

to cut the throat of the victim’s mother would also presumably have come into

evidence. Given these realities, Mr. Beers has failed to demonstrate he was

prejudiced by the fact that he did not testify at trial.

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                       Entered for the Court



                                                       Stephanie K. Seymour
                                                       Circuit Judge




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