                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                         February 20, 2015

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff – Appellee,
                                                             No. 14-7083
 v.                                               (D.C. Nos. 6:12-CV-00188-RAW &
                                                       6:09-CR-00036-RAW-2)
 DEANDRE LARON WASHINGTON,                                   (E.D. Okla.)
           Defendant – Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, LUCERO, and McHUGH, Circuit Judges.



       DeAndre Washington seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2255 habeas petition. We deny a COA and

dismiss the appeal.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
                                              I

       A jury found Washington guilty of violating 18 U.S.C. §§ 2 and 1512(a)(1)(A) by

attempting to kill a person with intent to prevent him from testifying in federal court.

The trial court denied Washington’s request that the jury be instructed on the defense of

entrapment. His counsel chose not to appeal this issue, but did appeal several others. On

direct appeal we affirmed Washington’s conviction. United States v. Washington, 653

F.3d 1251 (10th Cir. 2011).

       Washington subsequently moved for § 2255 relief, claiming that he asked his

attorney to appeal the entrapment instruction issue, but his attorney refused to do so. In

an affidavit, Washington’s counsel avers that he does not recollect such a request. To

resolve this inconsistency, Washington moved to supplement the record with several

recorded telephone conversations. The district court granted this motion, giving

Washington until March 21, 2014 to submit the recordings. However, Washington was

unable to obtain the phone records by that time, and had not yet obtained them when the

district court denied his § 2255 motion several months later. After judgment had been

entered, Washington filed a “Motion Requesting Court Intervention,” seeking the district

court’s assistance in obtaining the phone records. The district court denied the motion.

Washington timely appealed.1



       1
         Although the district court docketed Washington’s notice of appeal seven days
after the applicable deadline, he submitted a declaration under penalty of perjury stating
                                                                             Continued . . .
                                             -2-
                                              II

         Washington may not appeal the denial of § 2255 relief without a COA. 28 U.S.C.

§ 2253(c)(1)(B). We will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard,

Washington 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) (quotation omitted). Because Washington proceeds

pro se, we construe his filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991).

                                              A

         Washington argues that the district court abridged his constitutional due process

rights because it neither granted nor denied him a COA. But it is well established in the

Tenth Circuit that if a district court fails to grant or deny a COA within 30 days of issuing

final judgment, a COA is deemed denied. See, e.g., United States v. Kennedy, 225 F.3d

1187, 1193 n.3 (10th Cir. 2000).2 Given this authority, and the fact that this court is



that he placed his notice of appeal in the prison mail system before the deadline. His
appeal is therefore timely. See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005).
       2
         Language requiring that district courts decide whether to issue a COA has moved
from Fed. R. App. P. 22(b)(1) to Rule 11(a) of the Rules Governing Proceedings under
28 U.S.C. § 2254 or § 2255. See Fed. R. App. P. 22, Notes of Advisory Committee on
2009 Amendments. We have applied our deemed denied rule subsequent to this change.
See United States v. Chon, 434 F. App’x 730, 731 (10th Cir. 2011) (unpublished).

                                              -3-
empowered to grant a COA, see Fed. R. App. P. 22(b)(1), Washington has not made out a

due process violation, cf. Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011)

(“Due process is flexible and calls for such procedural protections as the particular

situation demands.” (quotation omitted)).

                                              B

       Washington contends that his appellate counsel was ineffective because he failed

to appeal the district court’s denial of an entrapment instruction. A petitioner claiming

ineffective assistance of counsel must establish “that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment” and that “the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. Proving ineffective

assistance of appellate counsel based on failure to raise a particular issue is difficult

because “counsel need not (and should not) raise every nonfrivolous claim, but rather

may select from among them in order to maximize the likelihood of success on appeal.”

Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quotation omitted). Courts must

give “deferential consideration . . . to any professional judgment involved in [an issue’s]

omission.” Id.

       Giving appropriate deference to the strategic decisions of Washington’s appellate

counsel, we conclude that he did not perform deficiently by failing to appeal the denial of
                                              -4-
an entrapment instruction. Counsel submitted an affidavit explaining that he and his

associates determined that the issue was not one of the strongest arguments on appeal.

The wisdom of this decision is evidenced by the lengthy published opinion engaging with

several complex legal issues that were raised in Washington’s direct appeal. See

Washington, 653 F.3d at 1251.

       Washington also contends that the district court decided his ineffective assistance

of counsel claim prematurely because the court did not consider recorded telephone

conversations that Washington sought unsuccessfully to obtain. He further contends that

the court erred by denying his post-judgment motion requesting the court’s assistance in

obtaining them. We disagree. The district court was able to decide Washington’s claim

based on an attorney affidavit explaining that the decision not to appeal this issue was

strategic. See LaFevers v. Gibson, 182 F.3d 705, 722 (10th Cir. 1999) (explaining that

“appellate counsel has no constitutional obligation to raise every nonfrivolous issue,

whether requested by the defendant or not”). Therefore, the district court did not abuse

its discretion by denying Washington’s post-judgment motion. See Allen v. Minnstar,

Inc., 8 F.3d 1470, 1474 (10th Cir. 1993) (concluding that a district court did not abuse its

discretion by denying post-judgment motion to supplement the record when the district

court was able to decide an issue based on the record before it).3


       3
        Washington argues that he has made a showing that further investigation under
the court’s subpoena power would likely lead to the discovery of evidence that would
warrant an evidentiary hearing. See United States v. Velarde, 485 F.3d 553, 560 (10th
                                                                           Continued . . .
                                             -5-
                                            C

       Washington argues that he is actually innocent based on several recent cases that

have narrowed the scope of the federal witness tampering statute. He relies on United

States v. Tyler, 732 F.3d 241 (3d Cir. 2013), which held that a claim of actual innocence

may be raised when a defendant “is being detained for conduct that has subsequently

been rendered non-criminal by an intervening Supreme Court decision.” Id. at 246

(emphasis added). Assuming that we were to adopt the Third Circuit’s view of actual

innocence, Washington’s argument nevertheless fails because neither Supreme Court

case he cites is “subsequent” to his conviction: one was decided before he was indicted,

and the other was decided while his appeal was still pending. See Fowler v. United

States, 131 S. Ct. 2045 (2011);4 Arthur Andersen, LLP v. United States, 544 U.S. 696

(2005).




Cir. 2007). But the district court concluded that Washington’s claims would fail even if
he directed his counsel to raise the issue on appeal, a conclusion we affirm. Accordingly,
Washington has not shown that he would have been entitled to an evidentiary hearing had
he procured the recordings. See id. (“[T]he court is required to conduct the evidentiary
hearing only if the admissible evidence presented by petitioner, if accepted as true, would
warrant relief as a matter of law.”).
       4
         Fowler was decided on May 26, 2011; Washington’s direct appeal was decided
on August 9, 2011.

                                            -6-
                                      III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Washington’s motion to proceed in forma pauperis is GRANTED.



                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




                                       -7-
