                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 20, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 08-3262
                                               (D.C. Nos. 2:03-CR-20167-JWL-1
    MAURICE IVORY,                                 & 2:08-CV-02250-JWL)
                                                           (D. Kan.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.


         Defendant-Appellant Maurice Ivory was convicted of being a felon in

possession of a firearm and sentenced to 262 months’ imprisonment. He appeals

from a district court order that denied his 28 U.S.C. § 2255 motion for sentencing

relief. This Court issued a certificate of appealability to consider whether his

trial counsel was ineffective in not calling his retained expert to testify about the

DNA found on the firearm. We affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                   B ACKGROUND

      In January of 2000, police officers working with the FBI’s Violent Crime

Fugitive Task Force arrested Ivory, who was on parole following an assault

conviction, and found him carrying a 9mm semi-automatic handgun. The gun was

eventually released to its owner, Ivory’s girlfriend. Ivory’s parole was revoked,

but some time later, he was paroled again.

      In September of 2003, officers executing a parole-violation warrant for

Ivory at his residence found the same gun, fully loaded, on the front seat of a car

parked in the garage. Next to the gun was a bag of crack cocaine, and inside the

car’s glove box were documents bearing Ivory’s name and signature. Ivory was

discovered hiding in the home’s attic.

      Ivory was charged with three counts: (1) possessing crack cocaine with

intent to distribute; (2) possessing a firearm in furtherance of drug trafficking;

and (3) being a felon in possession of a firearm. At trial, forensic chemist Mary

Koch testified that the DNA found on the firearm’s trigger guard and slide was

consistent with Ivory’s DNA profile. There was, however, “a minor portion of

the [DNA] mixture” from the slide that was consistent with an unidentified

person’s DNA; but the “major portion of the mixture” on the slide was consistent

with Ivory’s DNA. ROA, Vol. 2, Doc. 131 at 240-41. Koch explained that “the

person who touched the object last will deposit most of the DNA.” Id. at 295.




                                         -2-
      Ivory’s theory of the case was that Koch had cross-contaminated the

evidence collected from the gun with Ivory’s DNA sample when performing her

analysis. Ivory’s counsel elicited from Koch that cross-contamination had

occurred between two other cases in Koch’s lab. Specifically, “DNA from one

case show[ed] up in the DNA testing from another [case].” Id. at 321. But Koch

steadfastly refuted defense counsel’s attempts to establish a possibility of cross-

contamination in Ivory’s case. See, e.g., id. at 269. The most defense counsel

could do was point out that Koch had committed “an isolated clerical error” in her

bench notes—by designating the evidentiary samples as “1.2” and “1.3,” instead

of “2.1” and “3.1,” during the DNA quantification phase. Id. at 278-79.

      To support his cross-contamination theory, Ivory’s counsel had retained a

DNA expert, Dean Stetler, Ph.D. In response to a government motion to exclude

Dr. Stetler’s testimony, Ivory’s counsel stated that Dr. Stetler would testify “that

at certain phases during the DNA testing conducted by the government’s experts

there were risks of cross contamination” of the evidence samples with the known

sample of Ivory’s DNA. Id., Doc. 130 at 3. The district court ruled that it would

permit Dr. Stetler to testify, but only to the extent explained by defense counsel.

At trial, after Koch concluded her testimony, defense counsel summarily informed

the court that he would not be utilizing Dr. Stetler.

      The jury found Ivory guilty on the felon-in-possession count, but hung on

the other two counts. The district court imposed a 262-month sentence.

                                          -3-
      Ivory appealed, arguing that his counsel was ineffective in not having

Dr. Stetler testify. This Court dismissed the appeal, see United States v. Ivory,

223 F. App’x 808, 808-10 (10th Cir. 2007), and Ivory pursued his ineffective-

assistance claim in the district court, arguing that Dr. Stetler could have

undermined key aspects of Koch’s testimony.

      The district court denied Ivory relief under 28 U.S.C. § 2255. First, it ruled

that Ivory’s counsel was not deficient in declining to call Dr. Stetler as a witness.

The court reasoned that defense counsel made a strategic decision based on the

circumstances at the time: (1) Dr. Stetler could be used only regarding the risks

of cross-contamination; (2) defense counsel had already succeeded in revealing to

the jury both that cross-contamination had occurred in Koch’s lab and that Koch

had made an error during her analysis of Ivory’s case; (3) Koch could be recalled

to further refute the defense’s cross-contamination theory if Dr. Stetler testified;

and (4) the government could undermine Dr. Stetler’s testimony on the ground

that he had performed no independent testing on the DNA samples in the case.

The district court thus concluded that it was not unreasonable to proceed without

Dr. Stetler, given the minimal value of his anticipated testimony and the inherent

risks of putting him on the stand.

      The district court also concluded that there would have been no prejudice

even if defense counsel had performed deficiently. Among other things, the court

cited evidence showing the connection between Ivory and the car in which the

                                          -4-
firearm was found, as well as the evidence that Ivory had possessed the very same

firearm in the past.

      Ivory now appeals.

                                    D ISCUSSION

      We review “the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Kennedy, 225 F.3d 1187,

1193 (10th Cir. 2000) (quotation omitted). A claim of ineffective assistance of

counsel is a mixed question of law and fact that we review de novo. Id. at 1197.

      To prevail on an ineffective-assistance claim, the petitioner must show both

that: (1) “counsel’s representation fell below an objective standard of

reasonableness”; and (2) there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

      Ivory re-asserts his district-court arguments concerning defense counsel’s

decision to not call Dr. Stetler as a witness. After reviewing the record, the

parties’ appellate briefs, the district court’s thorough order, and the relevant legal

authorities, we conclude that the district court did not err in denying Ivory’s

§ 2255 motion.




                                          -5-
                                 C ONCLUSION

      Accordingly, we AFFIRM the district court’s judgment for substantially the

same reasons given by the district court in its memorandum and order dated

August 22, 2008.

                                                 Entered for the Court



                                                 Bobby R. Baldock
                                                 Circuit Judge




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