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

                         FOR THE TENTH CIRCUIT                     October 2, 2018
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                No. 17-4127
                                            (D.C. Nos. 2:16-CV-00445-DN &
    THOMAS FRANCIS HALE,                         2:06-CR-00871-DN-1)
                                                       (D. Utah)
          Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
               _________________________________

         This appeal involves a motion to vacate a criminal conviction. The

defendant went bankrupt and clashed with the bankruptcy trustee. The

clashes escalated, and the defendant mailed the trustee a substance with a

suggestion that it might constitute a deadly biological agent called

“hantavirus.” (The substance actually comprised mouse droppings rather



*
      The parties do not request oral argument, and it would not materially
aid our consideration of the appeal. Thus, we have decided the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
than hantavirus.) The mailing led to a conviction for concealing a contract

in the bankruptcy proceedings and perpetrating a hoax regarding the

transmission of a biological agent.

      After unsuccessfully appealing the conviction, the defendant moved

for vacatur of his sentence, alleging that he had been incompetent during

the trial and that his trial counsel had been ineffective. The district court

denied the motion without holding an evidentiary hearing. On appeal, the

defendant argues that he was entitled to an evidentiary hearing. We

disagree. 1

                                    Merits

1.    The Standard of Review
      To evaluate the defendant’s argument regarding the need for an

evidentiary hearing, we engage in a two-step inquiry. We start with

whether the defendant would be entitled to relief if his allegations were

proven. United States v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992). If

he would be entitled to relief upon proof of the allegations, we consider

whether the district court abused its discretion in declining to conduct an

evidentiary hearing. Id.




1
      The government argues that we should not entertain these claims,
relying on the doctrines of law of the case and issue preclusion. We assume
for the sake of argument that these doctrines do not apply here.
                                       2
2.    Claims Involving Competency and Ineffective Assistance for
      Failure to Challenge Competency

      We consider the need for an evidentiary hearing based on the

underlying claims asserted in the motion to vacate the sentence. In the

motion, the defendant claimed in part he was not competent during the trial

and that his trial counsel had provided ineffective assistance. On the

competency claim, the defendant needed to show an inability

           to sufficiently consult with his attorney or

           to understand the proceedings.

United States v. DeShazer, 554 F.3d 1281, 1286 (10th Cir. 2009). On the

ineffective-assistance claims, the defendant needed to show that the legal

representation had been deficient and prejudicial. Strickland v.

Washington, 466 U.S. 668, 687-91 (1984). In our view, the district court

had the discretion to reject the competency and ineffective-assistance

claims without conducting an evidentiary hearing.

      The district court ruled twice that the defendant had been competent

to stand trial, and the defendant does not challenge either ruling. Instead,

he claims that after the rulings, he took medication that impaired his

thinking.

      The district court rejected this claim, relying on its observations of

the defendant during the trial. Reliance on these observations was proper.

See Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999) (stating that “[a]


                                      3
trial court may rely on its own observations of the defendant’s

comportment”). For example, the court noted that the defendant had

          appeared to be alert and to interact with his attorney and

          spoken appropriately in answering the court’s questions.

     The defendant points to two incidents where he had

          taken off some outer layers of clothing and

          stated that he had found it difficult to read some words on a
           document (even though he had been an attorney and college
           professor).

But the defendant’s description of these incidents need not have led the

court to question the prior rulings on competency. The defendant states

that he took off some of his outer clothes because he was hot. And even

attorneys and college professors might find some words hard to read. As a

result, there was nothing about the defendant’s description of these

incidents that would have compelled the court to revisit the issue of

competency.

     Apart from these incidents, the defendant insists that he was taking

medications that could cause adverse reactions. As an example, he says

that he was taking Buproprion and Zolpidem and that they could cause side

effects like hallucinations. But the defendant does not suggest that he was

hallucinating or otherwise experiencing any of the symptoms associated

with these two medications. And aside from his discomfort with the heat

and difficulty in reading some words, he presents no examples of how the
                                     4
medications might have impaired his ability to assist in his own defense. In

the absence of any such examples or support, the district court acted

reasonably when disallowing an evidentiary hearing on the claims

involving competency and the related claim of ineffective assistance.

3.    Claim of Ineffective Assistance Based on the Failure to
      Adequately Prepare for Trial
      In the motion to vacate, the defendant also claimed that his trial

counsel had failed to prepare witnesses, to present evidence regarding the

defendant’s reason for sending the envelope to the trustee, and to cross-

examine the trustee regarding excessive billings and failure to market

certain real estate. The district court declined to conduct an evidentiary

hearing on these claims. This ruling fell within the court’s discretion.

      In part, the defendant claimed that his counsel had failed to prepare

witnesses. But the defendant did not identify these witnesses or say how

their testimony would have improved with better preparation.

      In the appeal, the defendant also points to his motivation in sending

the envelope to the trustee. According to the defendant, he sent the

envelope only because the bankruptcy court had ordered him to furnish

everything to the trustee. But the defendant does not suggest that the order

required him to furnish mouse droppings to the trustee or to raise the

possibility that the substance might contain a deadly biological agent.




                                      5
      In addition, the defendant insists that his counsel should have cross-

examined the trustee about excessive billings, arguing that they would

have affected her credibility. But the defendant does not explain why he

thinks that the billings were excessive, how his counsel would have

supported the allegation of excessive billings, or even why he thinks that

the cross-examination would have yielded an admission of excessive

billings. Thus, the district court had the discretion to deny an evidentiary

hearing on this issue. See United States v. Moya, 676 F.3d 1211, 1214

(10th Cir. 2012) (stating that “district courts are not required to hold

evidentiary hearings in collateral attacks without a firm idea of what the

testimony will encompass and how it will support a movant’s claim”).

      The defendant also contends that his trial counsel should have cross-

examined the trustee about her failure to market the defendant’s real

estate. According to the defendant, his conflict with the trustee stemmed

from her failure to market the real estate. But trial counsel raised this point

when cross-examining the trustee. On redirect examination, the trustee

explained that she had experienced difficulty in marketing the real estate

because the defendant had not allowed real estate agents to come inside. In

light of this testimony, the defendant fails to explain how he would have

benefited from additional cross-examination. See id.

      Finally, the defendant argues that his counsel did not prepare for his

trial because he had expected the defendant to plead guilty. But as

                                       6
discussed above, the defendant has not shown how better preparation

would have affected the outcome.

                                    * * *

      We conclude that the district court had the discretion to deny an

evidentiary hearing on the defendant’s claims of ineffective assistance

based on inadequate preparation for trial.

4.    Claim of Conflict of Interest
      In the motion to vacate, the defendant also claimed that his trial

counsel had a conflict of interest. This claim is based on trial counsel’s

dating experiences with a female witness who had previously dated the

defendant.

      At trial, however, the defendant did not claim a conflict of interest.

As a result, he must show specific examples of how the purported conflict

adversely affected the trial counsel’s performance. Stouffer v. Reynolds,

168 F.3d 1155, 1161 (10th Cir. 1999). The district court didn’t need an

evidentiary hearing to reject this claim.

      The defendant alleges that his trial counsel had failed to elicit

favorable facts from the female witness. But the defendant didn’t identify

those facts to the district court. As a result, there was no need to hold an

evidentiary hearing. See United States v. Moya, 676 F.3d 1211, 1214 (10th

Cir. 2012) (stating that “district courts are not required to hold evidentiary

hearings in collateral attacks without a firm idea of what the testimony will

                                       7
encompass and how it will support a movant’s claim”). We therefore

conclude that the district court had the discretion to deny an evidentiary

hearing on the defendant’s claim of a conflict of interest. In light of this

conclusion, we affirm the order denying the defendant’s motion for vacatur

of his sentence.

                          Supplemental Appendix
      The defendant moved for leave to file a supplemental appendix,

which contains pro se materials filed in district court. But the supplemental

appendix is irrelevant because its contents are not cited in the briefs. Thus,

we deny the motion for leave to file a supplemental appendix.


                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge




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