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

                             FOR THE TENTH CIRCUIT                          August 12, 2015
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-2075
                                               (D.C. Nos. 1:11-CV-01135-LH-KBM and
ERIC MADRID,                                            1:08-CR-00683-LH-1)
                                                               (D.N.M.)
      Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Eric Madrid seeks a certificate of appealability (“COA”) to appeal the district

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

the appeal.

                                           I

      During an investigatory stop, officers discovered a rifle in the back seat of a

vehicle Madrid was driving. After the stop, Madrid moved to suppress evidence of

the rifle. The district court denied his motion to suppress. Subsequently, Madrid

pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C.



      *
         This order is not binding precedent, except under the doctrines of law of the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.
§ 922(g)(1). Madrid now alleges that his trial counsel was ineffective for failing to

further impeach the officers during the suppression hearing.

      Although we thoroughly recounted the facts underlying Madrid’s case in his

direct appeal, United States v. Madrid, 713 F.3d 1251, 1254-55 (10th Cir. 2013), we

provide further detail about the suppression hearing to clarify the basis of the case at

bar. Madrid argued that probable cause to search his vehicle was absent because

Officer Darrell Sanchez, who discovered the rifle, did so only after Lieutenant Chris

Stoyell detained Madrid for twenty minutes outside the vehicle.

      At the suppression hearing, Stoyell testified that he arrived at the apartment

complex about a minute after being dispatched, stopped the vehicle Madrid was

driving, pointed a spotlight at its driver-side window, and then awaited backup.

According to Stoyell, Sanchez arrived a minute or two later. The pair of officers

approached the vehicle and made contact with Madrid. Stoyell testified that while he

conversed with Madrid at the driver-side window, Sanchez observed a rifle case in

the back seat through the passenger-side window. At that point, Stoyell averred, he

asked Madrid to exit the vehicle and handcuffed him.

      Sanchez similarly testified that he arrived at the apartment complex a few

minutes after being dispatched, and that by the time he arrived, Stoyell had already

stopped Madrid. According to Sanchez’s testimony, while Stoyell talked to Madrid

on the driver side of the vehicle, Sanchez approached the passenger side. There, he

observed a rifle case in the back seat and informed Stoyell about it, which prompted

Stoyell to order Madrid to exit the vehicle.

                                           -2-
       Madrid described a different sequence of events. He testified that immediately

after he was stopped, Stoyell approached the vehicle, ordered Madrid to exit,

handcuffed him, forced him to remove his shirt, and told him to sit on a curb some

distance away from the vehicle. According to Madrid, Stoyell questioned him

outside of the vehicle for about twenty minutes before Sanchez arrived and noticed

the rifle case in the back seat.

       At the suppression hearing, Madrid’s trial counsel, Cliff McIntyre, attempted

to impeach Stoyell and Sanchez based on discrepancies between their testimony and

a dispatch log. The log revealed that Stoyell was dispatched at 7:55 p.m. and

Sanchez was dispatched one minute later. According to the log, Stoyell reported he

was “on scene” two minutes later, at 7:57 p.m. But Sanchez did not report he was

“on scene” until more than twenty minutes later, at 8:20 p.m.

       On direct examination, Sanchez explained that he forgot to report “on-scene”

when he initially arrived because he was concerned about officer safety. McIntyre

questioned Sanchez about this explanation on cross-examination, asking him how his

failure to report could be reconciled with the ability of every other officer, who

presumably faced similar concerns, to nonetheless report “on-scene” in a timely

fashion. During his cross-examination of Stoyell, McIntyre further probed into the

discrepancy between Stoyell’s claims regarding when Sanchez arrived and the timing

indicated by the dispatch log. Stoyell also admitted, under McIntyre’s questioning,

that it was “possible” that he asked Madrid to exit his vehicle before Sanchez arrived.

However, Stoyell remained adamant that he recalled Sanchez arriving and pointing

                                          -3-
out the rifle case before Madrid was asked to leave his vehicle. Additionally,

McIntyre cross-examined the police dispatcher, and elicited a concession from her

that the dispatch log indicated that Sanchez did not arrive on the scene until 8:20 p.m.

      McIntyre confronted both Stoyell and Sanchez with an inconsistency between

their testimony and what they told McIntyre’s investigator, LeRoy Sandoval, during

an earlier interview. While confronting Stoyell with the inconsistency, McIntyre

stated: “when you talked to my investigator, and I’ve got the tape here if I need to

refresh your recollection, you told my investigator you weren’t around the vehicle

when the weapon was discovered. You were away from the vehicle talking to Mr.

Madrid.” However, McIntyre did not attempt to introduce the tape recording into the

record, play the relevant excerpt to the court, introduce a copy of Sandoval’s

memorandum documenting the interview, or call Sandoval as a witness.

      Some of McIntyre’s impeachment tactics were less successful. He convinced

the district court to listen to a dispatch tape, which he claimed included a

conversation between Stoyell and Sanchez that proved Sanchez did not arrive on-

scene immediately. However, when the district court listened to the tape, it heard no

such conversation. Rather, it found that the tape contained evidence corroborating

the testimony of Stoyell and Sanchez, specifically that after dispatch requested that

Sanchez investigate a reported prowler, Stoyell overrode the request because Sanchez

was otherwise occupied.

      After the suppression hearing, the district court found that Stoyell and Sanchez

were credible, and that Madrid was not. It found that the officers’ version of events

                                           -4-
was correct, and discounted the allegedly contrary evidence from the dispatch log. It

found that Sanchez’s explanation that he simply forgot to immediately report on-

scene was corroborated by Stoyell overriding the request to have Sanchez respond to

the reported prowler, “indicating that Officer Sanchez was indeed on scene with Lt.

Stoyell.” Accordingly, the district court denied the motion to suppress. We

affirmed. Madrid, 713 F.3d at 1262.

      After Madrid filed the amended § 2255 motion now at issue, his new counsel

deposed both McIntyre and Sandoval and subpoenaed their records. Neither had

possession of the tape and both had destroyed their records. A memorandum

Sandoval drafted for McIntyre summarized an interview in which Stoyell provided a

version of events that aligned with Madrid’s testimony at the suppression hearing.

The district court denied the § 2255 claim, Madrid’s request for an evidentiary

hearing, and a COA. Madrid timely appealed.

                                           II

      Madrid 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.” 28 U.S.C. § 2253(c)(2). To satisfy

this standard, Madrid 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).



                                           -5-
                                           A

      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. “The assessment of prejudice should proceed

on the assumption that the decisionmaker is reasonably, conscientiously, and

impartially applying the standards that govern the decision. It should not depend on

the idiosyncracies of the particular decisionmaker . . . .” Id. at 695. “In making this

determination, a court hearing an ineffectiveness claim must consider the totality of

the evidence before the judge or jury.” Id.

      On appeal, Madrid argues that McIntyre rendered ineffective assistance

because he failed to cross-examine Stoyell in greater detail or to introduce evidence

of Sandoval’s interview to impeach Stoyell and Sanchez. Assuming arguendo that

McIntyre’s inactions constituted deficient performance under the first prong of

Strickland, we nevertheless conclude that Madrid was not prejudiced by McIntyre’s

inactions. McIntyre made strong arguments about the discrepancy between the

officers’ account of events and the timeline indicated by the dispatch log. He

extensively cross-examined Stoyell, Sanchez, and the dispatcher. It is unclear what

purpose additional cross-examination of Stoyell would have served, as McIntyre had

                                          -6-
already elicited a concession from Stoyell that it was “possible” that Madrid was

removed from the vehicle before Sanchez saw the rifle case. Moreover, McIntyre

confronted both Stoyell and Sanchez with the discrepancy between their testimony

and the account that Stoyell provided to Sandoval during the interview. We see no

reason why listening to, or reading an account of, Sandoval’s interview with Stoyell,

rather than hearing McIntyre recount the interview, would have caused the court to

reach a different decision.

      After reading the parties’ briefs, hearing testimony, and listening to the

dispatch tape and log, the district court found the officers to be credible. It found

that the dispatch tape corroborated officer testimony that Sanchez forgot to report on-

scene immediately. Madrid has not shown “a reasonable probability that . . . the

result of the proceeding would have been different” but for inaction by McIntyre. Id.

at 694.

                                           B

      Madrid further argues that the district court erred by failing to hold an

evidentiary hearing. We review a district court’s denial of an evidentiary hearing for

abuse of discretion. United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004).

A district court need not hold an evidentiary hearing if “the case record conclusively

shows the prisoner is entitled to no relief.” United States v. Marr, 856 F.2d 1471,

1472 (10th Cir. 1988).

      The district court granted several of Madrid’s discovery requests during the

§ 2255 proceeding. Madrid had the opportunity to depose both McIntyre and

                                           -7-
Sanchez. He subpoenaed them to obtain any records they had failed to turn over.

That discovery revealed that neither had possession of the tape, and that both had

destroyed their records. It is therefore unclear what evidence missing from the record

could be elicited during an evidentiary hearing. Madrid specifically contends that a

hearing is necessary to demonstrate the accuracy of the information that Sandoval

gave to McIntyre, particularly in light of the government’s suggestion that McIntyre

may have been “bluffing” about the existence of the tape. But both McIntyre and

Sandoval already testified in their depositions about the existence of the tape. And

the accuracy of the information Sandoval gave to McIntyre can be verified through

the memorandum Sandoval wrote for McIntyre, which is already in the record.

Accordingly, the district court did not abuse its discretion by denying Madrid’s

motion for an evidentiary hearing because the existing record shows conclusively that

Madrid is not entitled to relief. See Marr, 856 F.2d at 1472.

                                          III

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


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




                                          -8-
