                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      August 14, 2007
                   UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                        No. 07-5062
 v.                                           (D.C. Nos. 06-CV-456-HDC and
                                                     02-CR-169-HDC)
 C ARL B AILEY ,                                        (N.D. Okla.)

       Defendant - Appellant.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Carl Bailey, a federal inmate appearing pro se, seeks a certificate of

appealability (“COA”) so that he may challenge the district court’s denial of his

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. A jury

convicted M r. Bailey of conspiring to distribute marijuana, and the district court

sentenced him 236 months’ imprisonment followed by three years’ supervised

release. His conviction was affirmed on direct appeal. See United States v.

Bailey, 133 F. App’x 534 (10th Cir. 2005). He then sought relief pursuant to §

2255, asserting three claims of ineffective assistance of counsel. The district

court denied relief. Having determined that M r. Bailey has not made a
“substantial showing of the denial of a constitutional right,” see 28 U.S.C. §

2253(c)(2), we deny a COA and dismiss his appeal. See Slack v. M cDaniel, 529

U.S. 473, 483-84 (2000).

      W e recounted the facts underlying M r. Bailey’s case on direct appeal and

need not restate them here. See Bailey, 133 F. App’x at 535-36. The district

court understood M r. Bailey’s § 2255 motion to raise three claims of ineffective

assistance of counsel. Although the phrasing and order of his arguments has

changed in his application for a COA, the substance of all three issues remains

the same. The applicable law is also unchanged: a criminal defendant asserting

ineffective assistance of trial counsel must show both deficient performance and

prejudice to his defense in order to receive post-conviction relief. Strickland v.

W ashington, 466 U.S. 668, 687 (1984). M r. Bailey’s claims are deserving of a

COA only if “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. M cD aniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

      M r. Bailey first contends that his attorney was ineffective in failing to

object to testimony that evidence found in M r. Bailey’s apartment was marijuana

on the ground that the authorities had not tested the substance. The district court

rejected this argument, explaining:

      The record establishes that Bailey’s attorney moved in limine to

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      exclude from evidence the officer’s seizure of marijuana from his
      apartment. The Court denied the motion. At trial, on cross
      examination, Bailey’s attorney addressed the marijuana issue and the
      officer who testified admitted that the substance had not been tested
      by a lab to confirm it was marijuana.

R. Doc. 91, at 2. Our independent review of the record confirms that the district

court correctly recounted the sequence of events: counsel raised the issue in his

motion in limine, and, following the denial of his motion, mitigated the evidence

with a successful cross-examination at trial. See Tr. Transcript (Oct. 6-7, 2003)

at 6-9 (raising and ruling on objection); id. at 87 (eliciting testimony on cross-

examination that the substance was not tested). Plainly, this could not constitute

deficient performance and the district court’s resolution is not reasonably

debatable.

      Next, M r. Bailey argues that his attorney was ineffective in failing to

introduce an allegedly-exculpatory recording of a conversation between one of his

alleged co-conspirators, Jerry Steele, and Oklahoma State Trooper Branson Perry.

The district court rejected this claim after determining that “the subject audio tape

was admitted in evidence at trial.” R. Doc. 91, at 2. Although our review of the

record indicates that the tape itself was not admitted, see Tr. Transcript (Oct. 6-7,

2003) at 140-41, a transcript of the tape was admitted into evidence, id. at 51, and

both the witness and the trooper were cross-examined about the conversation at

issue, id. at 59-62 (testimony of Trooper Perry); id. at 136 (testimony of M r.

Steele). M r. Bailey does not indicate what evidence in the tape was not

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adequately reflected in the transcript or how the introduction of the tape itself

would have affected the jury’s consideration of his case. Having reviewed the

trial transcript and M r. Bailey’s arguments, there is no deficient performance

here. Reasonable jurists therefore could not find the district court’s rejection of

M r. Bailey’s second argument reasonably debatable.

      Finally, M r. Bailey contends that his attorney was ineffective in failing to

call him as a witness in his own defense. “A criminal defendant has a

constitutional right to testify in his own behalf at trial. The decision whether to

testify lies squarely with the defendant; it is not counsel’s decision.” Cannon v.

M ullin, 383 F.3d 1152, 1171 (10th Cir. 2004) (internal citation omitted). The

district court determined that M r. Bailey did not have credible evidence in support

of his assertion that he wanted to testify, meaning that he could not satisfy either

prong of the Strickland analysis.

      In seeking a COA, M r. Bailey contends that the district court erred in

refusing to hold a hearing to determine whether his attorney prevented him from

testifying. Pursuant to § 2255, the court “shall hold a hearing” on a § 2255

motion “[u]nless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief . . . .” M r. Bailey contends that the

affidavit he submitted in support of his motion–which indicated that he expressed

the desire to testify to counsel, see R. Doc. 76, Att. B–was sufficient to require

the court to hold a hearing.

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      However, § 2255 directs the court to consider “the motion and the files and

records of the case,” id. (emphasis added), which together show that M r. Bailey

could not establish an ineffective assistance claim on this basis. W ith respect to

counsel’s performance, M r. Bailey’s general and ambiguous affidavit does not

merit a hearing. Defense counsel submitted a detailed affidavit recounting his

advice that M r. Bailey remain silent and M r. Bailey’s numerous reasons for not

wanting to testify, including the potential problems due to cross-examination. 1 R.

Doc. 85, Att. 2. M oreover, it is significant that M r. Bailey never once suggested

to the court that he wished to testify despite several opportunities to do so.

See Tr. Transcript (O ct. 6-7, 2003) at 10; id. at 323; id. at 343. Furthermore, w e

note that M r. Bailey did not testify in either of his prior trials on this charge.

      Be that as it may, M r. Bailey cannot establish prejudice. In the district

court, he gave no suggestion of the content of his testimony or how it would have

affected the jury’s consideration of the evidence. In fact, he admitted, “This is

not an issue where Petitioner is alleging that his testimony would have made a

difference in the outcome of the case.” 2 R. Doc. 88 at 5. W e reject M r. Bailey’s

contention that Strickland prejudice need not be shown when the case involves the



      1
         M r. Bailey now attempts to refute tw o of the reasons counsel advised him
not to testify. Aplt. Br. at 4.
      2
         To the extent M r. Bailey now claims prejudice on appeal, the argument is
waived. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (claims raised
for the first time on appeal are deemed to be waived).

                                           -5-
right to testify. See United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.

1992) (en banc) (requiring a showing of deficient performance and prejudice in

order to succeed on an ineffective assistance of counsel claim based on a violation

of the right to testify). Given the lack of evidence or argument presented

regarding prejudice, no reasonable jurist could question the district court’s

rejection of M r. Bailey’s third claim.

      W e DENY M r. Bailey’s request for a COA and DISM ISS his appeal.


                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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