                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 7 2004
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                         No.02-6297
 LORENZO LUCHO CASTENEDA-                        (D.C. Nos. 02-CV-1009-R &
 ULLOA, aka Silvio Luis Ignacio-                        99-CR-57-R)
 Castaneda; aka Joe Ortega; aka Jose                    (W.D. Okla.)
 Rivera Ortega; aka Lucho Castenada-
 Ulloa; aka Lorenzo Castenada Ulloa,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY, and MURPHY, Circuit Judges.


      Petitioner Lorenzo Lucho Casteneda-Ulloa (“Petitioner”) filed a habeas

petition under 28 U.S.C. § 2255 on the ground that he received ineffective

assistance of counsel when his trial attorney failed to request a cautionary jury



      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
instruction regarding accomplice testimony. The district court denied his petition,

and Petitioner now appeals. We exercise jurisdiction pursuant to 28 U.S.C. §§

1291 and 2253, REVERSE the district court’s denial of habeas corpus, and

REMAND for further proceedings in accordance with this order and judgment.



                                  BACKGROUND

      Petitioner was convicted on one count of conspiracy to distribute cocaine,

in violation of 21 U.S.C. § 846 (Count 1); five counts of facilitating interstate

transportation in aid of racketeering, in violation of 18 U.S.C. § 1952(a)(3)

(Counts 2, 3, 5, 6, and 8); one count of money laundering, in violation of 18

U.S.C. § 1956(a)(1)(A) (Count 7); and one count of use of a communication

facility to facilitate the conspiracy to distribute cocaine, in violation of 21 U.S.C.

§ 843(b) (Count 9).

      On direct appeal, Petitioner argued, inter alia, that the district court

improperly failed to give a jury instruction that uncorroborated accomplice

testimony had to be carefully scrutinized, weighed with great care, and received

with great caution with regard to Count 3. Because trial counsel had not

requested the instruction, we reviewed the alleged error under a plain error

standard of review.   United States v. Castaneda-Ulloa   , 15 Fed. Appx. 680, 684

(10th Cir. 2001) (unpublished). We held that “[t]he failure of the district court to


                                         -2-
give a separate cautionary instruction regarding [uncorroborated] accomplice

testimony was plain error that affected substantial rights.”   Id. at 685. However,

we declined to reverse this error because we did not believe that the “‘fairness,

integrity or public reputation of judicial proceedings’ was ‘seriously affect[ed].’”

Id. at 685 (quoting United States v. Olano , 507 U.S. 725, 732 (1993)) (alteration

in original).

       Petitioner then filed a habeas petition under 28 U.S.C. § 2255 in the

Western District of Oklahoma on the ground that his attorney’s failure to request

the cautionary accomplice instruction constituted ineffective assistance of counsel

as to Count 3. The district court denied habeas relief because, although we had

found prejudice under Olano on direct appeal, the court believed that our finding

that the error did not seriously affect the “fairness, integrity or public reputation

of judicial proceedings” meant that Petitioner had failed to show the requisite

level of prejudice under Strickland v. Washington, 466 U.S. 668, 694 (1984).

Petitioner appeals this denial. We granted a certificate of appealability on June

24, 2003, and now REVERSE and REMAND for further proceedings in

accordance with this order and judgment.




                                            -3-
                                   DISCUSSION

A.    Standard of Review

      A district court may grant relief under § 2255 if it determines that “the

judgment was rendered without jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral attack, or that there has been

such a denial or infringement of the constitutional rights of the prisoner as to

render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255. 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). A claim of ineffective assistance of counsel presents a mixed

question of law and fact which we review de novo. Id. at 1197.



B.    Strickland Analysis

      To prevail on an ineffective assistance of counsel claim, a petitioner must

show: (1) deficient performance by counsel that (2) caused prejudice to the

petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984).



      1.     Deficient Performance

      Under the first prong of Strickland, Petitioner must demonstrate that his

attorney’s failure to request a cautionary accomplice instruction was deficient


                                        -4-
performance that fell below an objective standard of reasonableness. See Bullock

v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (citing Strickland, 466 U.S. at

687-88). As described below, we conclude that Petitioner’s attorney committed

error that may have constituted deficient performance, but we remand for the

district court to ascertain whether the failure was the result of informed attorney

strategy.

      The Supreme Court has noted the existence of a “commonsense recognition

that an accomplice may have a special interest in testifying, thus casting doubt

upon his veracity.” Cool v. United States, 409 U.S. 100, 103 (1972). Although a

defendant may be convicted solely on the grounds of accomplice testimony, the

jury must be instructed “that accomplice testimony must be carefully scrutinized,

weighed with great care, and received with caution.” United States v. Chatman,

994 F.2d 1510, 1514-15 (10th Cir. 1993); see also Butler v. United States, 408

F.2d 1103, 1105 (10th Cir. 1969). Failure to give an accomplice instruction may

be reversible error “if the testimony of an accomplice is uncorroborated.” United

States v. Gardner, 244 F.3d 784, 789 (10th Cir. 2001); see also United States v.

Wiktor, 146 F.3d 815, 817-18 (10th Cir. 1998); United States v. Hill, 627 F.2d

1052, 1053 (10th Cir. 1980); United States v. Owens, 460 F.2d 268, 269 (10th

Cir. 1972).




                                         -5-
      An accomplice’s testimony is “uncorroborated” if “the testimony of the

accomplice is the only testimony directly tying the defendant into the criminal

transaction.” See United States v. Williams, 463 F.2d 393, 395 (10th Cir. 1972);

see also Gardner, 244 F.3d at 789. Even if the accomplice’s testimony is “nearly”

uncorroborated, reversal may be appropriate. United States v. Shuckahosee, 609

F.2d 1351, 1357 (10th Cir. 1980). If an accomplice instruction is required

because the accomplice’s testimony is uncorroborated, we have found general

credibility instructions to be insufficient. See Gardner, 244 F.3d at 790; Hill, 627

F.2d at 1054-55.

      In the instant case, the government conceded that the accomplice testimony

was the only evidence supporting Petitioner’s conviction on Count 3. Castaneda-

Ulloa, 15 Fed. Appx. at 684. However, the district court failed to give a special

accomplice instruction and we found the “Accomplice-Plea Agreement”

instruction to be insufficient to fill that role. Id. at 684-85. Therefore, in our

opinion on direct appeal, we held that “[t]he failure of the district court to give a

separate cautionary instruction regarding accomplice testimony was plain error

that affected substantial rights.” Id. at 685. In other words, we found the district

court’s failure to be “error” that was “clear” or “obvious” and that prejudiced




                                          -6-
Petitioner, thereby meeting the first three prongs of Olano. 1 Since we concluded

that the fourth prong of Olano (that the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings) was not met, we affirmed

the conviction.

      Although we did not address on direct appeal counsel’s failure to request

such an instruction, in holding that the court’s failure to issue the cautionary

instruction was “clear” and “obvious” error, we surely did not intend to excuse

counsel for failing to alert the court to the same error. See United States v.

Conley, 349 F.3d 837, 841 (5th Cir. 2003) (finding deficient performance where

counsel failed to object to an error that was “obvious” and governed by clear

precedent); cf. Hawkins v. Hannigan, 185 F.3d 1146, 1154 (10th Cir. 1999)

(finding deficient performance in counsel’s failure to raise on appeal an issue that

had “obvious merit”). We have already found the omission of this instruction to

be an obvious error that affected Petitioner’s substantial rights, and we thus find

it difficult to believe that the failure to request the instruction was effective

performance as judged by an objective standard of reasonableness. See e.g.,


      1
        Because Petitioner did not make this objection below, our review was only
for plain error. To notice plain error under Rule 52(b), a court must find there to
be (1) error (2) that is “plain” and (3) that “affects substantial rights.” Olano, 507
U.S. at 732. If those first three prongs are met, the court may reverse the error
within its discretion only if the fourth prong is satisfied, namely that the “error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id.

                                          -7-
Freeman v. Class, 95 F.3d 639, 642 (8th Cir. 1996) (“[T]here [wa]s no reasonable

trial strategy for failing to request the cautionary accomplice testimony instruction

and corroboration instruction . . . We cannot envision an advantage which could

have been gained by withholding a request for these instructions.”).

      Nevertheless, if counsel’s failure to request this instruction was actually the

result of informed litigation strategy, it may be saved from constituting deficient

performance. See Bullock, 297 F.3d at 1046. “[W]here it is shown that a

particular decision was, in fact, an adequately informed strategic choice, the

presumption that the attorney’s decision was objectively reasonable becomes

‘virtually unchallengeable.’” Id. (emphasis in original). If the attorney’s error

was the result of an adequately informed strategic choice, it will be deemed

unreasonable only if the “choice was so patently unreasonable that no competent

attorney would have made it.” Id. (quotation omitted). Because there was no

hearing or significant argument below on this issue, we remand to the district

court so that it can hold an evidentiary hearing on whether Petitioner’s counsel

had some strategic reason for failing to request the accomplice instruction. The

court must then decide the ultimate question of whether the attorney’s

performance fell within the objective standard of reasonableness set forth by the

first prong of Strickland. See Bullock, 297 F.3d at 1046.




                                         -8-
      2.     Prejudice

      To succeed under the second prong of Strickland, a petitioner “must show

that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” 2 Strickland, 466 U.S. at

694. A “reasonable probability” is a “probability sufficient to undermine

confidence in the outcome.” 3 Id.

      2
         Petitioner argues that he was prejudiced by his trial counsel’s failure to
request the accomplice instruction because this failure resulted in plain error
review on direct appeal. However, this is the incorrect focus of the Strickland
inquiry, which analyzes the trial error’s prejudicial effect on the outcome of the
trial itself rather than the effect on the appellate standard of review. “When a
defendant challenges a conviction, the question [in ascertaining prejudice] is
whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.
      3
        The district court in the instant case improperly applied a heightened
prejudice standard in its Strickland analysis (requiring fundamental unfairness
rather than mere outcome determination), relying on Lockhart v. Fretwell, 506
U.S. 364, 370 (1993). As the Supreme Court has explained, however, “Lockhart
does not supplant the Strickland analysis.” Glover v. United States, 531 U.S. 198,
203 (2001); see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that
Lockhart has not “modified or in some way supplanted the rule set down in
Strickland”); United States v. Horey, 333 F.3d 1185, 1188 (10th Cir. 2003)
(same); Spears v. Mullin, 343 F.3d 1215, 1248 (10th Cir. 2003) (same); Revilla v.
Gibson, 283 F.3d 1203, 1220 n.14 (10th Cir. 2002) (same).
       Rather, Lockhart only applies to those cases where relying on “mere
outcome determination” would grant a “windfall” to the defendant, giving him
more than the substantive and procedural rights to which the law entitled him.
See Williams, 529 U.S. at 392. For example, acquittal on the grounds of attorney
error would have been a “windfall” in Lockhart because the law had changed such
that the attorney’s actions would no longer constitute error, and thus the
defendant was not deprived of a right to which the current law entitled him.
“Cases such as . . . Lockhart do not justify a departure from a straightforward
                                                                        (continued...)

                                        -9-
      On direct appeal in the instant case, we found that the court’s failure to

give an cautionary accomplice instruction in the face of uncorroborated

accomplice testimony constituted prejudice under the third prong of Olano for

purposes of plain error review. 4 Castaneda-Ulloa, 15 Fed. Appx. at 685. This

means, in most cases, that the error must have “affected the outcome of the

district court proceedings.” 5 Olano, 507 U.S. at 734; see also United States v.


      3
        (...continued)
application of Strickland when the ineffectiveness of counsel does deprive the
defendant of a substantive or procedural right to which the law entitles him.” Id.
at 393 (emphasis in original) (citation omitted).
       To the extent our prior cases once adopted a heightened prejudice standard
for run-of-the-mill ineffective assistance of counsel claims, see, e.g., Newsted v.
Gibson, 158 F.3d 1085, 1091-92 (10th Cir. 1998); Rogers v. United States, 91
F.3d 1388, 1392 (10th Cir. 1996); United States v. Kissick, 69 F.3d 1048, 1055
(10th Cir. 1995), those decisions have been abrogated by Glover and Williams.
      4
       We held that “[t]he failure of the district court to give a separate
cautionary instruction regarding accomplice testimony was plain error that
affected substantial rights.” Castaneda-Ulloa, 15 Fed. Appx. at 685. However,
we declined to exercise our discretion to reverse the error because we found the
error not to satisfy the fourth prong of Olano. Id.
      5
       The Court later qualified its definition by stating that it “need not decide
whether the phrase ‘affecting substantial rights’ is always synonymous with
‘prejudicial.’” Olano, 507 U.S. at 735. The Court continued:

      There may be a special category of forfeited errors that can be
      corrected regardless of their effect on the outcome, but this issue
      need not be addressed. Nor need we address those errors that should
      be presumed prejudicial if the defendant cannot make a specific
      showing of prejudice. Normally, although perhaps not in every case,
      the defendant must make a specific showing of prejudice to satisfy the
      “affecting substantial rights” prong of Rule 52(b).
                                                                       (continued...)

                                        - 10 -
Brown, 316 F.3d 1151, 1158 (10th Cir. 2003). We thus conclude, under law of

the case doctrine, that in the instant case the failure to request the accomplice

instruction affected the outcome and met the prejudice prong of Strickland, 466

U.S. at 694.



                                  CONCLUSION

      For the foregoing reasons, we REVERSE and REMAND for further

proceedings under the deficient performance prong of Strickland.



                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




      5
        (...continued)
Id. We have since clarified that the Court’s reference to the first category of
errors that can be corrected regardless of their effect on the outcome are
apparently “structural constitutional errors.” United States v. Brown, 316 F.3d
1151, 1158 n.3 (10th Cir. 2003).

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