                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 18, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 CH RISTOPHER PLOU SE,

                 Petitioner-A ppellant,                  No. 06-2315
          v.                                       District of New M exico
 G EO RG E TA PIA ,                            (D.C. No. CIV-04-1066-JH/DJS)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Christopher Plouse, a state prisoner, seeks a certificate of appealability

(“COA”) that would allow him to appeal from the district court’s order denying

his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because w e conclude that M r. Plouse has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. Id. § 2253(c)(2).




      *
        This order is not binding precedent, except under the doctrines of law of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 10 th Circ. R. 32.1.
                                    Background

      On M arch 27, 1999, Christopher Plouse attempted to escape from the

Southern New M exico Correctional Facility, where he was being incarcerated for

two prior second-degree murder convictions.      M r. Plouse smuggled a large rock

into his cell and, with the aid of fellow inmate R andall Reynolds, used it to

hamm er through the cell wall. After the inmates made their way through the

prison ventilation system, guards apprehended them in the prison yard. At trial

M r. Plouse presented a duress defense, claiming that he was unsafe at the

Southern New M exico Correctional Facility and that he and M r. Reynolds

attempted to escape in order to then turn themselves into the proper authorities.

A jury subsequently convicted M r. Plouse of escape from a penitentiary.

      M r. Plouse raises three claims in his federal habeas petition: (1) that he was

denied effective assistance of trial counsel, (2) that his right to a speedy trial was

violated, and (3) that he was denied his right to material exculpatory evidence.

The district court denied relief, adopting a magistrate judge’s findings that M r.

Plouse has not shown that the state court arrived at a conclusion inconsistent with

that reached by the Supreme Court on a question of law; or unreasonably applied

the governing legal principle to the facts of the case. See Elliot v. Williams, 248

F.3d 1205, 1207 (10th Cir. 2001).




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                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. Id. § 2253(c)(1)(A). A

COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make such a

showing, a petitioner must demonstrate that “reasonable jurists could debate

whether . . . 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. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

                       A. Ineffective Assistance of Counsel

      M r. Plouse first contends that his trial counsel was constitutionally

deficient. To prove ineffectiveness of counsel M r. Plouse must show that

counsel’s performance was both ineffective and prejudicial to his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). W hen we analyze strategic

decisions there is a deference to the professional judgment of the attorney.

Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). See generally Strickland,

466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable”). If counsel

performs below an objective standard of reasonableness, then we ask whether

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

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

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      M r. Plouse argues that counsel failed to conduct adequate pre-trial

investigation–in particular, that trial counsel did not investigate any witnesses,

documents, or evidence that would have corroborated M r. Plouse’s testimony.

M r. Plouse fails to show, however, that any further investigation would have

altered the outcome of the trial. M r. Plouse had the opportunity to cross-examine

prison officials about conditions inside the facility as well as to elicit information

on prison gangs and violence. The defendant also testified to the conditions of

his confinement, and under cross-examination explained that he had refused

protective custody in lieu of attempting to escape. There is no evidence that

further investigation would have altered the outcome of the trial, and no specific

witness or document was excluded that would have made counsel’s actions

prejudicial.

      The failure to call an expert witness likewise was not prejudicial or

deficient. In this case it is unclear how additional testimony from an expert

witness stating that M r. Plouse was in danger would benefit him, as he had

testified that he opted against protective custody and other witnesses testified that

he had a rather extensive history of escape attempts. As the Supreme Court has

observed, “counsel . . . may disserve the interests of his client by attempting a

useless charade.” United States v. Cronic, 466 U.S. 648, 656 n.19 (1984). M r.

Plouse’s counsel may well have thought that expert testimony was exactly that.

This Court is not in the position to second-guess strategic trial decisions.

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      M r. Plouse also argues that his Sixth Amendment rights were violated

when, more than halfway through his two-day trial, M r. Plouse–against the advice

of his counsel and the court–elected to proceed pro se. M r. Plouse claims that the

court, in granting his request, caused counsel for M r. Plouse to be “totally absent .

. . during a critical stage.” Id. at 659 n.25. This is a new argument, which this

Court generally does not consider on appeal. See Tele-Communications, Inc. v.

Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997). But even if we did consider it,

the fact that M r. Plouse dismissed his counsel and chose to complete the trial pro

se against the advice of the trial court and after extensive warnings as to the

dangers of pro se litigation destroys the base from which this argument builds. If

the court determines that the request is knowing and voluntary, and “the

defendant still elects to proceed pro se, [then] the court must permit him to do

so.” United States v. Peppers, 302 F.3d 120, 133 (10th Cir. 2002). Any

abandonment by counsel during a critical stage w as completely of M r. Plouse’s

own doing.

                             B. Right to a Speedy Trial

      In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court outlined four

factors for determining whether a defendant has been deprived of his right to a

speedy trial: (1) length of the delay, (2) the reason for the delay, (3) the extent to

which the defendant asserted his speedy trial rights, and (4) prejudice to the

defendant. Id. at 530–32.

                                          -5-
      The New M exico court, after allowing that the twenty-one months that

passed between arraignment and trial was presumptively prejudicial, balanced

these factors and concluded that the defendant’s right to a speedy trial was not

violated. W e agree. Prior defense counsel had requested thirteen months of

delay, and the first proven instance of the defendant asserting his right to a

speedy trial occurred just tw o months before the trial began. See id. at 531.

Because the defendant was already a state prisoner, the possible prejudice of

prolonged confinement prior to trial was low. See id. at 532. W e conclude that

M r. Plouse’s right to a speedy trial was not violated.

             C. Denial of Right to M aterially Exculpatory Evidence

      Third and finally, M r. Plouse argues that the prosecution withheld

exculpatory evidence, including a security group threat manual and photographs.

W e agree with the district court that because M r. Plouse failed to make a Brady

objection at trial about the evidence in question, see Brady v. M aryland, 373 U.S.

83, 87 (1963), his claim is procedurally barred. “O n habeas review, this court

does not address issues that have been defaulted in state court on an independent

and adequate state procedural ground, unless the petitioner can demonstrate cause

and prejudice or a fundamental miscarriage of justice.” Anderson v. Sirmons, 476

F.3d 1131, 1140 (10th Cir. 2007) (citing English v. Cody, 146 F.3d 1257, 1259

(10th Cir. 1998)). Because requiring a defendant to make a Brady objection at




                                          -6-
trial is an independent and adequate state remedy, the district court properly

denied relief on the grounds that the claim was not properly preserved.

      M r. Plouse also argues that counsel was ineffective in failing to make the

requisite Brady objection. W e disagree. The trial court determined that the

prosecution turned over all existing, applicable evidence. Counsel for M r. Plouse

already had the security threat group manual in his possession when the trial

began, and there is no indication that any other missing evidence existed. W hile

M r. Plouse asserts that photographs, administrative segregation forms, and other

documents would have corroborated his claims that he tried to escape out of

duress, he cannot show that any of these documents actually existed in the first

place. Because there was no reason for trial counsel to object, he was not

ineffective for failing to do so.

                                    Conclusion

      W e D EN Y M r. Plouse’s request for a COA and DISM ISS this appeal.

                                                    Entered for the Court,

                                                    M ichael W . M cConnell
                                                    Circuit Judge




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