                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    January 16, 2009
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 08-6186
 v.                                              (D.C. No. 07-CV-01114-L)
                                                        (W.D. Okla.)
 TUYEN VU NGO,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Defendant-Appellant Tuyen Vu Ngo, a federal inmate appearing pro se,

seeks a certificate of appealability (“COA”) so that he may appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

federal sentence. Because we determine that he has not made a “substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000), we deny his request for a COA and

dismiss the appeal.

      Mr. Ngo was convicted of one count of possession of

methylenedioxymethamphetamine (“MDMA”), a controlled substance, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of conspiracy
to possess with intent to distribute MDMA in violation of 21 U.S.C. § 846. He

was sentenced to 240 months on each count to run concurrently, and three years’

supervised release on each count, also to run concurrently. R. Doc. 216 at 2-3.

Mr. Ngo appealed, but this court affirmed his conviction. See United States v.

Tuyen Vu Ngo, 226 F. App’x 819, 826 (10th Cir. 2007) (unpublished opinion).

      Subsequently, Mr. Ngo filed a § 2255 motion asserting (1) that the search

of his vehicle violated the Fourth Amendment, (2) that his counsel was ineffective

at both the trial and appellate level, and (3) that his knowledge of English was so

limited that it impaired his ability to communicate with his counsel and the court.

R. Doc. 233. The district court denied Mr. Ngo’s § 2255 motion, finding that his

first and third grounds were barred because they should have been raised on direct

appeal and that his second ground failed because Mr. Ngo could not establish

prejudice and because counsel actually provided “vigorous, effective

representation.” United States v. Tuyen Vu Ngo, No. CIV-07-1114-L, 2008 WL

3834397, at * 2-3 (W.D. Okla. Aug. 12, 2008). In seeking a COA from this court,

Mr. Ngo only argues that his counsel provided ineffective assistance.

      Mr. Ngo argues that he was provided ineffective assistance because (1)

prior to trial, counsel failed to interview certain witnesses and secure their

presence at the suppression hearing; (2) at trial, counsel failed to call certain

individuals as witnesses, failed to effectively cross-examine a cooperating

defendant, and did not present the defense that Ngo was an unwitting participant;

                                          -2-
(3) at sentencing, counsel failed to argue for a reduced sentence based on

sentencing disparity; and (4) on direct appeal, counsel failed to argue that he had

provided ineffective assistance. Because the district court addressed the merits of

these claims in rejecting Mr. Ngo’s § 2255 motion, we will only grant a COA if

the petitioner demonstrates “that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at

484. Here, no reasonable jurist would find the district court’s assessment of these

claims to be debatable.

      To succeed on an ineffective assistance claim, Mr. Ngo must demonstrate

deficient performance by counsel, and resulting prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). As to the pre-trial conduct of counsel,

Mr. Ngo suffered no prejudice from the fact that certain additional police

witnesses did not testify at the suppression hearing. The key facts were

developed because, as is customary, the government called the two officers who

actually conducted the stops and initial searches to testify at the suppression

hearing. See 1/5/2006 Tr. at 10-13, 129-36. Although Mr. Ngo argues that more

law enforcement officers could have been called, such an unusual tack seems

more likely to support the government’s case than his own. Moreover, the alleged

information these witnesses would have provided—“that Ngo evinced no evidence

of guilt whatever”—does not address the main issue of whether the initial stop of

the vehicles was justified. Furthermore, the trial judge complimented all counsel

                                         -3-
after arguments on the suppression motions, remarking that “this is not an open

and clearcut matter” given the “very persuasive and good arguments” by counsel.

Id. at 314.

      Similarly, counsel’s conduct at trial did not prejudice Mr. Ngo. He has

made no showing that there is a reasonable probability of a different trial outcome

had there been such testimony. See Strickland, 466 U.S. at 694. And, contrary to

Mr. Ngo’s position, counsel adequately cross-examined the cooperating defendant

at trial about his favorable treatment by the government, see 3/23/2006 Tr. at 306-

07, and did argue that the government had to show that Mr. Ngo actively

participated in the crime, as opposed to merely being present, see 3/26/2006 Tr. at

416-17.

      Mr. Ngo also has not demonstrated a reasonable probability that his

sentence would have been different but for counsel’s performance. Counsel

argued the relative culpability of the participants, and the district court did

consider the disparate sentences of the other participants, distinguishing a lesser

sentence given to a codefendant on the basis of Mr. Ngo’s greater criminal history

and the codefendant’s plea and acceptance of responsibility. 7/10/2006 Tr. at 3-4,

8-9, 11.

      Finally, counsel did not provide ineffective assistance by failing to argue

his own ineffectiveness on direct appeal. Such claims should be brought in

collateral proceedings, and are “presumptively dismissable” if brought on direct

                                          -4-
appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).

      Accordingly, we DENY a COA, DENY IFP status, and DISMISS this

appeal.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




                                       -5-
