                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       July 15, 2015
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 14-4078
 v.                                           (D.C. No. 1:10-CR-00037-CW-1)
                                                          (D. Utah)
 CARLOS MANUEL MENDEZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.


      Carlos Mendez seeks to overturn his federal drug and gun convictions.

Most of his brief focuses on his trial counsel’s performance, contending it was

sufficiently deficient and prejudicial that it violated his Sixth Amendment right to

effective assistance. See Strickland v. Washington, 466 U.S. 668 (1984). Two

separate problems attend this line of argument.

      First, ineffective assistance claims are traditionally heard on collateral

review under 28 U.S.C. § 2255, not on direct appeal. When a litigant seeks to



      *
         This order and judgment is not binding precedent except under the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.
raise them on direct appeal, they “are presumptively dismissible, and virtually all

will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc). This court follows that rule for good reason: usually we can’t

assess the quality of a trial lawyer’s actions or determine their prejudicial impact

without a fully developed record, including testimony from the lawyer and

evidence about the strategic choices (the witnesses, the evidence, the experts, and

the like) that were and were not available to him. Id. Of course, our rule bears “a

narrow exception” for rare cases where ineffective assistance is so obvious from

the trial record alone that further development isn’t necessary to be sure a Sixth

Amendment violation has occurred. United States v. Trestyn, 646 F.3d 732, 741

(10th Cir. 2011). But in our judgment this is not that sort of rare case.

      Second, some (but not all) of the ineffective assistance claims Mr. Mendez

seeks to pursue in this appeal he has already pursued and lost in the kind of

§ 2255 proceeding our rule favors. Mr. Mendez alleges that his trial counsel

should’ve called two witnesses that he didn’t — and that this failure was

prejudicial to him. But Mr. Mendez raised this very argument in district court in

a § 2255 motion, which he lost. To obtain review of that ruling in this court he

would have had to seek and obtain a certificate of appealability pursuant to 28

U.S.C. § 2253(c)(1)(B), something he has never attempted despite able assistance

from counsel. Neither may we overlook this oversight ourselves for the COA




                                        -2-
requirement is a jurisdictional one. Miller-El v. Cockrell, 537 U.S. 322, 336-37

(2003).

      Beyond his ineffective assistance arguments and at the end of his opening

brief Mr. Mendez briefly contends that we should reverse his convictions because

of two sets of alleged trial errors we may consider in this direct appeal. One set

relates to the prosecutor’s comments before the jury; the other concerns the

district court’s jury instructions. Both of these arguments, Mr. Mendez

acknowledges, are subject to our plain error standard of review for they were not

timely raised in the district court. United States v. Fabiano, 169 F.3d 1299, 1302-

03 (10th Cir. 1999) (unpreserved errors only warrant reversal if they are clear,

affect substantial rights, and seriously affect the fairness, integrity, or public

reputation of judicial proceedings).

      Mr. Mendez complains that the prosecutor improperly argued to the jury

that this case implicated “public safety” because Mr. Mendez, a felon barred from

possessing guns in the first place, was caught running from police in a residential

neighborhood while carrying a sawed-off rifle. In Mr. Mendez’s view, the

prosecutor’s comments suggested to the jury that it should decide the case based

on public policy concerns rather than the facts or the law. We are not so sure the

comments he points to suggest quite that much. But even assuming — without

deciding — that they do and that they were plainly improper we still don’t see

how they affected Mr. Mendez’s substantial rights — as we must to satisfy the

                                         -3-
third prong of the plain error test. The evidence adduced at trial was strong: Mr.

Mendez was seen dropping the gun that formed the basis of his gun convictions

while he was running from the police, and the methamphetamine that formed the

basis of his drug conviction was found on his person. Mr. Mendez’s trial attorney

himself apparently didn’t see the public safety comments as a great disadvantage

for not only didn’t he object, he pressed the point to his advantage, going out of

his way to stress that the pursuing officer’s failure to mention a firearm in calling

for backup showed Mr. Mendez posed no public safety danger. Finally, the

district court instructed the jury both before opening and closing argument that

contentions by counsel do not evidence make. Taking these considerations

together, we don’t see here the sort of threat to Mr. Mendez’s right to a fair

hearing that might justify a second trial.

      When it comes to the jury instructions, Mr. Mendez points to two he

believes are problematic. The first advised the jury that its focus should be on the

question whether the evidence the government did present showed guilt beyond a

reasonable doubt, not on the question whether the government might have

produced more evidence still. In Mr. Mendez’s telling, this instruction gutted an

element of his trial strategy, which hinged on the argument that the government

could’ve produced more than eyewitness testimony (things like DNA evidence)

against him. But the invited error doctrine precludes us from reaching the issue

because Mr. Mendez’s counsel expressly stipulated to the instruction in question.

                                         -4-
See United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012). Mr.

Mendez’s final complaint concerns an instruction in which the court advised the

jury that it could consider his flight as evidence suggestive of guilt. But we

cannot see how any conceivable error here was plain for much of the instruction

was drawn from Illinois v. Wardlow, 528 U.S. 119, 124 (2000), and in relevant

respects it mirrors language the Eighth Circuit approved in United States v.

Webster, 442 F.3d 1065, 1067 (8th Cir. 2006).

      This appeal is dismissed for lack of jurisdiction as to the two claims the

district court rejected in disposing of Mr. Mendez’s § 2255 motion. The district

court’s judgment is otherwise affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                          -5-
