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

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

      Plaintiff - Appellee,

v.                                                             No. 17-1368
                                                     (D.C. No. 1:16-CV-02740-CMA)
MIKEAL GLENN STINE,                                             (D. Colo.)

      Defendant - Appellant.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

       Defendant Mikeal Glenn Stine seeks a certificate of appealability (COA) to appeal

the dismissal by the United States District Court for the District of Colorado of his

motion under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of relief under § 2255). Because no reasonable jurist could debate the district

court’s disposition of Defendant’s claims, we deny a COA and dismiss the appeal.

       In August 2015, Defendant was convicted by a jury on two counts of threatening a

United States Magistrate Judge and one count of threatening an assistant United States

attorney in violation of 18 U.S.C. § 115(a)(1)(B) and (b)(4). Defendant appealed and this

court affirmed. See United States v. Stine, 664 F. App’x 697, 698 (10th Cir. 2016).

       Defendant filed his § 2255 motion in November 2016, claiming that his counsel

was ineffective in four respects: (1) failing to assert Defendant’s speedy-trial right; (2)
failing to retain a handwriting expert to examine the threatening letters or to call

favorable witnesses identified by Defendant; (3) failing to cross-examine all the

government’s witnesses; and (4) failing to allow Defendant to testify. The district court

denied relief on the merits of all claims1 and also denied his request for appointment of

counsel and a private investigator.2

       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). This standard

requires “a demonstration that . . . includes showing 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) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

1
  The district court appears to have held that the first three ineffective-assistance claims
were also barred because they were not raised on direct appeal. That ground, however,
could not be sustained. The Supreme Court has held that ineffective-assistance-of-
counsel claims need not be raised on direct appeal. See Massaro v. United States, 538
U.S. 500, 509 (2003) (“[F]ailure to raise an ineffective-assistance-of-counsel claim on
direct appeal does not bar the claim from being brought in a later, appropriate proceeding
under § 2255.”); United States v. Erickson, 561 F.3d 1150, 1170 (10th Cir. 2009) (“Even
before Massaro this circuit had held that it is never necessary to bring an ineffectiveness
claim on direct appeal because collateral proceedings under 28 U.S.C. § 2255 are almost
always preferable.”).
2
  The record indicates that Defendant also filed in district court a motion for reduction in
sentence under Fed. R. Crim. P. 35(b), but the denial of that motion is not at issue in this
appeal.


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       To prevail on his ineffective-assistance claims, Defendant must show both that his

counsel’s performance was deficient—“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 [his] defense.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). In undertaking this analysis, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.” Id. at 689 (internal quotation marks omitted). Particularly relevant here:

       [S]trategic choices made after thorough investigation of law and facts
       relevant to plausible options are virtually unchallengeable; and strategic
       choices made after less than complete investigation are reasonable precisely
       to the extent that reasonable professional judgments support the limitations
       on investigation. In other words, counsel has a duty to make reasonable
       investigations or to make a reasonable decision that makes particular
       investigations unnecessary. In any ineffectiveness case, a particular
       decision not to investigate must be directly assessed for reasonableness in
       all the circumstances, applying a heavy measure of deference to counsel’s
       judgments.

Id. at 690–91. Further, to establish that a defendant has been prejudiced by counsel’s

deficient performance, 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. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694. “It is not enough for the defendant to show that the errors had

some conceivable effect on the outcome of the proceeding.” Id. at 693. “In making this

determination, a court . . . must consider the totality of the evidence before the judge or



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jury,” recognizing that “a verdict or conclusion only weakly supported by the record is

more likely to have been affected by errors than one with overwhelming record support.”

Id. at 695–96. “[A] court making the prejudice inquiry must ask if the defendant has met

the burden of showing that the decision reached would reasonably likely have been

different absent the errors.” Id. at 696. “Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim.”

(emphasis added)). Id. at 700.

       We can easily dispose of the ineffective-assistance/speedy-trial claim on

Strickland’s prejudice prong. As the district court noted, this court determined on

Defendant’s direct appeal that his speedy-trial rights were not violated. See Stine, 664 F.

App’x at 701–03. Defendant could not have been prejudiced by failure to raise an issue

that was doomed to fail. See Dennis v. Poppel, 222 F.3d 1245, 1261 (10th Cir. 2000).

       The remaining claims concern strategic and tactical decisions in the trial. The

district judge who denied Defendant’s § 2255 motion, who had also presided at

Defendant’s trial, noted that the “government called five witnesses and presented

overwhelming evidence of Defendant’s guilt.” R., Vol. I. at 123. In particular, an FBI

agent testified that Defendant had confessed to sending the letters. Defense counsel’s

strategy therefore focused on Defendant’s scienter, contending that the letters were not

serious and he wrote them just to bring attention to what he viewed as his unfair

treatment by the federal Bureau of Prisons. Such a strategy would render it unnecessary,

or even counterproductive, to challenge much of the government’s case—it could weaken

the credibility of Defendant’s argument that he did not intend the letters as threats if he


                                              4
also denied writing them. Given Strickland’s mandate that we defer to properly informed

strategic decisions by trial counsel, no reasonable jurist could debate the district court’s

rejection of Defendant’s second and third ineffective-assistance claims. The overall

defense strategy explains the decision not to call witnesses identified by Defendant or to

seek a handwriting expert to challenge whether Defendant signed the threatening letters;

and it also explains why defense counsel cross-examined the witnesses he did:

questioning those able to discuss Defendant’s intent and not questioning those who would

be unable to advance the strategy.

       Defendant’s fourth claim—that his counsel refused to allow him to testify—

requires some additional discussion. A criminal defendant has the constitutional right to

testify in his own defense. See Cannon v. Mullin, 383 F.3d 1152, 1171 (10th Cir. 2004).

This prerogative is the defendant’s alone, and “counsel lacks authority to prevent a

defendant from testifying in his own defense, even when doing so is suicidal trial

strategy.” Id. Thus, if Defendant’s factual allegation is true and his attorney prevented

him from testifying at trial, then the attorney’s performance was deficient. But

Defendant must still satisfy the prejudice prong of the Strickland test. See Cannon v.

Trammell, 796 F.3d 1256, 1275 (10th Cir. 2015) (holding that there was no prejudice in

preventing defendant from testifying because “the inconsistences between the record

evidence, including his recorded statement, and his evidentiary hearing testimony support

a conclusion that Cannon would not have advanced his cause by testifying at trial”).

Defendant argued below and in this court that he wished to testify, not regarding his

intent, but to show that circumstances made it impossible for him to have written or


                                              5
mailed the threatening letters. This would have been a futile venture. This claim fails on

the prejudice prong because the failure to call Defendant as a witness does not come

close to undermining confidence in the outcome of the trial. See Strickland, 466 U.S. at

694.

       In sum, no reasonable jurist could debate that the district court properly rejected

Defendant’s ineffective-assistance claims. Finally, we see no abuse of discretion in the

district court’s denial of Defendant’s request for counsel or for a private investigator to

assist him in the § 2255 proceedings.

       We DENY Defendant’s application for a COA and DISMISS this appeal. We

GRANT Defendant’s motion for leave to proceed in forma pauperis.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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