                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 May 8, 2008
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 08-4011
                                              (D.C. Nos. 2:05-CV-217-TS and
 DEVIN ESPINOZA,                                    2:00-CR-56-TS-2)
                                                         (D. Utah)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      Devin Espinoza, a federal prisoner proceeding pro se, seeks to challenge

his imprisonment in a 28 U.S.C. § 2255 habeas petition. The district court

dismissed the petition, concluding that Mr. Espinoza’s ineffective assistance of

counsel claim failed because he did not show deficient performance by his

attorney or prejudice resulting from his attorney’s performance. Mr. Espinoza

now seeks before us a certificate of appealability (“COA”) to appeal the district




      *
        This order is not binding precedent except under the doctrines of law of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.
court’s order; for substantially the same reasons given by the district court,

however, we do not believe a COA is warranted in this case.

                                       *   *     *

      In July 2001, federal prosecutors in the District of Utah tried Mr. Espinoza

on the charges of committing or aiding and abetting an armed bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2 (Count I), and

committing or aiding and abetting the offense of using or brandishing a firearm

during the robbery, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 (Count

II). During deliberations the jury sent a note to the trial judge asking the

following:

      If we determine that there is enough circumstantial evidence to find
      the defendant guilty of at least aiding and abetting the commission of
      the bank robbery, but that the evidence is not sufficient to determine
      that he was in the bank at the time of the robbery, can we find the
      defendant guilty of [C]ount I but not Count II?

      We consider it possible that while he aided and abetted the
      commission of the crime, there is not enough evidence to determine
      that the defendant was instrumental in procuring weapons or
      planning their use.

D. Ct. Order at 7. The trial judge provided counsel with a copy of the note and

the judge’s proposed instruction. Without objection from either party, the judge

answered “yes” to the question and reminded the jury to consider all previous

instructions. Four hours later the jury rendered its verdict, finding Mr. Espinoza

guilty of armed robbery (Count I) but not guilty of using or brandishing a firearm


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during the robbery (Count II). The judge sentenced Mr. Espinoza to 200 months’

imprisonment.

       Mr. Espinoza appealed to this court, arguing, among other things, that

(1) the trial judge’s response to the jury’s note was incomplete and misleading

and (2) the evidence was insufficient to support the guilty verdict for armed bank

robbery because the jury acquitted him of using or brandishing a firearm during

the robbery and because the jury’s note indicated that it believed Mr. Espinoza

was not one of the robbers. United States v. Espinoza, 338 F.3d 1140, 1145, 1147

(10th Cir. 2003). This court rejected each sufficiency of the evidence argument

and concluded that the trial judge did not commit plain error in his response to the

jury’s note, ultimately affirming Mr. Espinoza’s conviction. Id. at 1145-49.

      In his current Section 2255 petition, Mr. Espinoza charges that his trial

counsel provided ineffective assistance by failing to object to the trial judge’s

answer to the jury’s question, failing to request a lesser included offense

instruction in response to the jury’s question, failing to object to the original

instructions setting out the elements of Counts I and II, and failing to raise these

three issues on appeal. The district court dismissed Mr. Espinoza’s Section 2255

petition, concluding that counsel’s performance was not deficient and Mr.

Espinoza suffered no prejudice because none of the arguments he would have had




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counsel make were meritorious. The court did not act on Mr. Espinoza’s

application for a COA, so we deem it denied. See 10th Cir. R. 22.1(C). 1

      We may issue a COA only if the petitioner makes “a substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Based on

our independent review of the record in this case, and affording solicitous

consideration to Mr. Espinoza’s pro se court filings, see Van Deelen v. Johnson,

497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we agree with the district court that

Mr. Espinoza has not met this threshold.

      In order to succeed on his ineffective assistance of counsel claim, Mr.

Espinoza must show that his attorney’s advocacy fell below an “objective

standard of reasonableness,” and that “there is a reasonable probability” that, but

for counsel’s deficient representation, the result in his case would have been

different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). The

defendant bears the burden of overcoming the “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id. at

689. “When, as here, the basis for the ineffective assistance claim is the failure to

raise an issue, we must look to the merits of the omitted issue” – if it is “without

      1
         The district court allowed Mr. Espinoza to proceed without payment of
the filing fees, and we likewise grant his application to proceed in forma pauperis
on appeal.

                                         -4-
merit, then counsel’s failure to raise it is not prejudicial, and thus is not

ineffective assistance.” United States v. Orange, 447 F.3d 792, 797 (10th Cir.

2006). For substantially the same reasons set forth by the district court in its

thoughtful memorandum decision, we believe that Mr. Espinoza has failed to

reach this high standard.

      First, Mr. Espinoza charges that his counsel was ineffective for failing to

object to the trial judge’s answer to the jury’s question, which he asserts allowed

the jury to reach an inconsistent verdict, contrary to law. He also charges that

counsel was ineffective for failing to contest on appeal the correctness of the

judge’s response, rather than only arguing that the judge also should have given

further clarifying instructions. But counsel did raise the inconsistent verdict

argument on appeal in a challenge to the sufficiency of the evidence; this court

not only held that sufficient evidence supported Mr. Espinoza’s conviction on the

count of which the jury found him guilty, but also held that the trial judge’s

supplemental instruction was not plain error. Most importantly, as this court

explained on direct appeal, and as the district court concluded on collateral

review, an inconsistent jury verdict in a criminal case like this is not a basis for

relief after the Supreme Court’s decision in United States v. Powell, 469 U.S. 57,

64-66 (1984). See Espinoza, 338 F.3d at 1147-48; D. Ct. Order at 11-14.

Counsel’s failure to raise at trial or on appeal the unmeritorious argument that the

judge’s response allowed the jury to reach an inconsistent verdict therefore was

                                           -5-
not objectively unreasonable, nor has Mr. Espinoza shown that if the issue had

been raised there was a reasonable probability that he would have prevailed.

      Second, Mr. Espinoza alleges that his counsel was ineffective by failing to

request a lesser included offense instruction of unarmed robbery in response to

the jury’s question and failing to appeal this issue. A defendant is entitled to a

lesser included offense instruction if “(1) there was a proper request; (2) the

lesser included offense includes some but not all of the elements of the offense

charged; (3) the elements differentiating the two offenses are in dispute; and (4) a

jury could rationally convict the defendant of the lesser offense and acquit him of

the greater offense.” United States v. Moore, 108 F.3d 270, 272 (10th Cir. 1997).

As the district court correctly noted, the element differentiating robbery and

armed robbery was not in dispute at trial. The government’s theory was that Mr.

Espinoza committed or aided and abetted an armed robbery and the defense’s only

theory was that Mr. Espinoza knew nothing of the crime. Thus, the evidence at

trial did not warrant an instruction on the possible lesser included offense – the

evidence only allowed the jury to decide that Mr. Espinoza either did or did not

participate in or aid an armed robbery. Because the evidence at trial did not

warrant a lesser included offense instruction, Mr. Espinoza’s counsel was not

deficient in not asking for the instruction or raising the issue on appeal and Mr.

Espinoza was not prejudiced by his counsel’s failure to request such an

instruction.

                                         -6-
      Finally, Mr. Espinoza charges that his counsel was ineffective by failing to

object to the original instructions setting out the elements of Counts I and II (and

failing to raise the issue on appeal) because the instructions were not clear on

whether Count I charged an armed or unarmed bank robbery. This argument is

without merit. Instruction 16 clearly states that Count I “charges Devin Espinoza

with committing bank robbery with a dangerous weapon.” Br. at 5. Instruction

17 emphasizes that, to prove Count I, the government must prove four elements

beyond a reasonable doubt, including “that in committing the crime, the defendant

either assaulted another person by the use of a dangerous weapon, or put one or

more persons’ lives in jeopardy by the use of a dangerous weapon.” Id. at 6. And

Instruction 32, about Count II, refers to “the crime of bank robbery as set forth in

Count I.” Id. at 7. Counsel’s failure to raise the meritless argument that these

instructions did not make clear whether Count I required the use of a dangerous

weapon was not objectively unreasonable. Because Mr. Espinoza has not shown

that his counsel failed to raise any meritorious issue, his ineffective assistance of

counsel claim fails.

                                       *   *     *

      Mr. Espinoza has failed to show that the district court’s disposition of his

Section 2255 petition is debatable or incorrect; accordingly, we deny his request




                                           -7-
for a COA and dismiss this appeal.


                                     ENTERED FOR THE COURT


                                     Neil M. Gorsuch
                                     Circuit Judge




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