                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 25, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-1207
                                               (D.C. Nos. 03-CV-409-WDM and
    VICTOR THEODORE MARTINEZ,                         99-CR-413-WDM)
                                                          (D. Colo.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and HOLMES, Circuit Judges.


         Following a jury trial in April 2000, Victor Theodore Martinez was

convicted in the United States District Court for the District of Colorado of being

a felon in possession of a firearm and was sentenced to 235 months’

imprisonment. We affirmed his conviction and sentence in United States v.

Martinez, 30 F. App’x 900 (10th Cir. 2002). Mr. Martinez then filed a motion




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
under 28 U.S.C. § 2255 to set aside his sentence. The district court denied the

motion, prompting the instant appeal.

      This court has issued a certificate of appealability (COA) to review whether

Mr. Martinez received ineffective assistance of trial counsel and whether the

district court should have conducted an evidentiary hearing to resolve the § 2255

motion. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we

affirm.

                                 I. B ACKGROUND

      We take the following background facts from this court’s order and

judgment in Mr. Martinez’s direct criminal appeal:

             On November 16, 1999, at approximately 4:00 p.m.,
      Isadore Romero reported to police that Mr. Martinez had been at
      Mr. Romero’s house driving a black sport utility vehicle.
      Mr. Romero observed Mr. Martinez talking to Mr. Romero’s son,
      Ray Romero. Isadore Romero advised Colorado Springs Police
      Officer Jeff Jensen that Mr. Martinez and Ray Romero appeared to
      be having an argument, and that he (Isadore Romero) observed
      Mr. Martinez seated in the driver’s position with a black pistol in
      his lap.
             Approximately thirty minutes earlier, Officer Jensen had
      observed Mr. Martinez driving a black Isuzu Trooper (a type of sport
      utility vehicle) in the vicinity of a liquor store in the Colorado
      Springs area, had run a computer check, and had learned that
      Mr. Martinez’s license was suspended. Officer Jensen was also
      aware that Mr. Martinez was a convicted felon and prohibited from
      possessing a firearm. Officer Jensen had also recognized another
      gentleman, Jerome Ambers, in the passenger seat of the vehicle.
      At the time, Officer Jensen was distracted by a higher priority call
      and was unable to attempt to approach Mr. Martinez. However,
      around 5:00 p.m. that same day, after receiving the report from
      Mr. Romero, Officer Jensen obtained the cellular telephone number

                                        -2-
      for Mr. Ambers and called Mr. Ambers to see if Mr. Ambers was still
      with Mr. Martinez. Mr. Ambers confirmed that he was still with
      Mr. Martinez, and provided Officer Jensen with the location. Officer
      Jensen requested other units be dispatched to this area.
             At approximately 6:00 p.m., Officer Jackson Andrews
      observed the black Isuzu Trooper and recognized Mr. Martinez as the
      driver. Officer Andrews knew of Isadore Romero’s report and also
      knew of Mr. Martinez’s status as a convicted felon. Officer Andrews
      radioed that he had located Mr. Martinez. Officer Andrews then
      activated his emergency lights and approached the Isuzu Trooper.
      Officer Andrews observed the Isuzu accelerate quickly in reverse,
      striking the police car. The Isuzu then accelerated forward and
      began traveling west.
             Officer Michael Roy, who was nearby, followed Officer
      Andrews in a brief pursuit of Mr. Martinez. Mr. Martinez soon
      stopped his vehicle. The officers removed Mr. Martinez from the
      vehicle and placed him under arrest. Officer Roy put Mr. Martinez
      in the back of Officer Roy’s police car and returned to the Isuzu.
      Officer Roy glanced into the vehicle and observed a black handgun
      toward the rear compartment area. Officer Roy secured the weapon
      for placement into evidence.

Martinez, 30 F. App’x at 902-03.

      Mr. Martinez was indicted for being a felon in possession of a firearm. See

18 U.S.C. § 922(g)(1). The government offered a plea agreement contemplating a

sentence of 92-115 months. At the time, Mr. Martinez was represented by the

Federal Public Defenders Office. Mr. Martinez later retained attorney Shaun

Kaufman, who allegedly failed to “address the pending proposed plea agreement

with [Mr. Martinez].” Aplt. App. at 160 (Memorandum in support of 2255

motion).

      Trial began in April 2000. Kaufman attempted to portray the firearm as

belonging to Ambers. In pursuit of this theory, Kaufman elicited several hearsay

                                       -3-
statements from Officer Jensen during cross-examination, including that Ambers

admitted “that he [Ambers] had touched the pistol twice.” Tr. of Proceedings at

82. According to Officer Jensen, Ambers stated that he had twice attempted to

take the gun from Mr. Martinez, and that in doing so he may have left his

fingerprints on it. Kaufman also elicited from Officer Jensen that during police

questioning, Mr. Martinez said that Ambers “had the gun.” Id. at 93. But not all

of Kaufman’s cross-examination supported his theory, as he elicited from Officer

Jensen that Ambers had said that he had seen Mr. Martinez insert a live round

into the gun. On redirect, Officer Jensen repeated both Ambers’s description of

the live-round incident and Mr. Martinez’s claim that Ambers had the gun.

      Kaufman later explained to the trial judge that he had not objected to the

government’s questioning of Officer Jensen about Ambers’s statements because

he (Kaufman) “thought [he had] kind of opened the door” and “thought [the

prosecutor] was just completing what [he] had opened.” Id. at 163. Kaufman

also explained that he had spoken with Ambers’s attorney and decided not to call

Ambers as a witness because he (Kaufman) believed Ambers would invoke his

privilege against self-incrimination. He did, however, propose calling Detective

Dan Lake to testify (1) that in November 1998 he had arranged to purchase a

“machine pistol” from Javon Crawford, who said that he had received the gun

from Ambers, id. at 161-62, and (2) that he (Lake) “saw Crawford and Ambers in

the same parking lot where this transaction occurred,” id. at 162. The district

                                         -4-
court took the proposal under consideration. For reasons that are not in the

record, Kaufman apparently decided not to pursue Lake’s testimony, although the

court indicated, after the case was submitted to the jury, that it would have

admitted Lake’s testimony if Ambers had testified.

      After this court affirmed Mr. Martinez’s conviction and sentence on direct

appeal, he filed his § 2255 motion. Among other things, he argued that Kaufman

had provided ineffective assistance at trial because he (1) suffered from bipolar

disorder and a methamphetamine addiction; 1 (2) failed to address the proposed

plea agreement with Mr. Martinez; (3) failed to call Ambers and Detective Lake

as witnesses; and (4) failed to object to the government’s introduction of hearsay

evidence. The district court denied Mr. Martinez’s motion and accompanying

request for an evidentiary hearing. He now appeals.

                                  II. D ISCUSSION

                               A. Standards of Review

      “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,

774 (10th Cir. 1998). “We review the district court’s refusal to hold an

evidentiary hearing for an abuse of discretion.” United States v. Harms, 371 F.3d

1208, 1210 (10th Cir. 2004).

1
       In 2003 Kaufman was suspended from the practice of law for various acts
of misconduct, some of which occurred contemporaneously with Mr. Martinez’s
trial.

                                         -5-
                              B. Assistance of Counsel

      “[C]riminal defendants have a Sixth Amendment right to ‘reasonably

effective’ legal assistance.” Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). This right is

violated when (1) counsel’s representation falls “below an objective standard of

reasonableness,” Strickland, 466 U.S. at 688, and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different,” id. at 694.

                  1. Counsel’s Mental Illness and Drug Addiction

      Mr. Martinez argues that Kaufman’s bipolar disorder and methamphetamine

addiction “interfered with his effective representation.” Aplt. Br. at 16. But as

there is no claim that Kaufman’s illness and addiction rendered him

constructively absent and per se ineffective, see United States v. Cronic, 466 U.S.

648, 659-62 (1984), we must examine his actual performance during the trial, see

Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995).

                          2. The Proposed Plea Agreement

      The district court assumed that Kaufman performed deficiently regarding

the proposed plea agreement, but ruled that Mr. Martinez failed to show

prejudice. We perceive no error.

      Mr. Martinez contends that Kaufman “was ineffective in failing to at least

proffer the existence of the plea agreement to his client and determine if Mr.

                                          -6-
Martinez would have accepted the agreement.” Aplt. Br. at 21. “[E]ffective

assistance of counsel includes counsel’s informed opinion as to what pleas should

be entered.” United States v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997). A

defendant is prejudiced by counsel’s deficient performance in regard to plea

bargaining if there is “a reasonable probability that but for incompetent counsel

[the] defendant would have accepted the plea offer and pleaded guilty.” Carter,

130 F.3d at 1442.

      Mr. Martinez, however, has not alleged that the attorney who negotiated the

agreement failed to advise him about it, and Mr. Martinez’s present counsel did

not contest below that Mr. Martinez “may have seen [the proposed] plea

agreement when represented by [the prior attorney].” United States v. Martinez,

No. CV-03-WM-0409, Doc. 114 at 1 (Resp. in support of § 2255 motion).

Moreover, at sentencing, Mr. Martinez indicated that he had entered guilty pleas

in other cases, but adamantly insisted that he was innocent of the crime for which

he was being sentenced. Although Mr. Martinez’s attorney asserted in one of the

§ 2255 pleadings that Mr. Martinez would have accepted the plea agreement, this

bald assertion is hardly sufficient to justify an evidentiary hearing, much less

relief. The standard for obtaining an evidentiary hearing “is higher than notice

pleading.” United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004).

“District courts are not required to hold evidentiary hearings in collateral attacks

without a firm idea of what the testimony will encompass and how it will support

                                          -7-
a movant’s claim.” Id.; see also United States v. Aiello, 814 F.2d 109, 113-14 (2d

Cir. 1987) (“Airy generalities, conclusory assertions and hearsay statements” do

not warrant an evidentiary hearing). Mr. Martinez has failed to provide sufficient

support for his claim that he was prejudiced by any failure of Kaufman to consult

with him about a plea agreement. The district court properly rejected this claim

without conducting an evidentiary hearing.

                                   3. Witnesses

      Mr. Martinez next argues that Kaufman’s failure to call Ambers and

Detective Lake as witnesses left the jury “with one impression[,] that it was Mr.

Martinez who possessed the firearm.” Aplt. Br. at 22. The district court found

that Kaufman did not perform deficiently and, that even if he had, Mr. Martinez

was not prejudiced “given the state of the record.” Aplt. App. at 184. We

conclude that there has been no showing of deficient performance.

      Kaufman decided against calling Ambers as a witness because he believed

that Ambers “would have claimed the Fifth Amendment on the stand.”

Tr. of Proceedings at 276. The prosecutor agreed, and aptly noted that “‘neither

the prosecution nor the defense may call a witness knowing that the witness will

assert his Fifth Amendment privilege against self incrimination.’” Id. at 276-77

(quoting United States v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983)). Further,

even if Ambers would not have asserted the privilege, the value of his testimony

would likely have been limited. Although he admitted to Officer Jensen that his

                                         -8-
fingerprints may have been on the gun, he explained that he had attempted to

disarm Mr. Martinez on two occasions. And if for some reason he would have

claimed exclusive possession, the government could have impeached his

testimony with his contrary statements to Officer Jensen.

      As for Kaufman’s failure to call Detective Lake, we cannot discern how

his testimony would have been beneficial. We agree with the government’s

characterization of the testimony: “[T]he gist of the testimony from Detective

Lake would have been that an unrelated suspect (Crawford), in an unrelated

transaction [which occurred one year before the incident leading to

Mr. Martinez’s arrest] . . . made a hearsay declaration that another suspect who

also was not on trial (Ambers) had supplied a weapon that was not at issue . . . .”

Aplee. Br. at 13.

      Therefore, we conclude that Kaufman did not perform deficiently in not

calling Ambers or Detective Lake as a witness. An evidentiary hearing was

unnecessary.

                                4. Hearsay Evidence

      Mr. Martinez faults Kaufman for not objecting when Officer Jensen

testified regarding statements made by Ambers “to the effect that Martinez

possessed the firearm.” Aplt. Br. at 22 (internal quotation marks omitted). It

appears that Mr. Martinez is referring to Officer Jensen’s redirect testimony about

Ambers’s description of the live-round incident. The district court rejected

                                         -9-
Mr. Martinez’s argument because of the absence of prejudice, stating that

Mr. Romero testified that he saw Mr. Martinez in possession of a firearm and that

there was evidence that the gun was found inside Mr. Martinez’s vehicle.

      Neither party to this appeal has provided this court with the cited

testimony. Nevertheless, we determine that Kaufman did not perform deficiently.

As Kaufman explained to the district court, he did not object because he had

opened the door to Ambers’s statements while cross-examining Officer Jensen.

Kaufman apparently pursued that strategy because there was no other way to put

Ambers’s self-incriminating statements before the jury. And Kaufman’s strategy

was partially successful, in that Officer Jensen relayed Ambers’s admission that

his fingerprints might be on the gun, thereby suggesting that Ambers possessed

the gun. Significantly, Mr. Martinez does not fault Kaufman for eliciting the

hearsay testimony about Ambers that was helpful to his defense. There is

likewise no complaint in regard to Kaufman’s failure to object to Officer Jensen’s

redirect hearsay testimony that Mr. Martinez said that Ambers “had the gun.” Tr.

of Proceedings at 94. Although Kaufman may have inadvertently brought up the

damaging live-round incident on cross-examination, Mr. Martinez makes no issue

of it on appeal. The problem faced by Kaufman was that the evidence strongly

favored guilt. To obtain any favorable evidence, he needed to elicit hearsay, even

though this effort would likely lead to the introduction of additional unfavorable

evidence. We conclude that Kaufman’s failure to object when Officer Jensen

                                        -10-
provided damaging hearsay testimony was a necessary consequence of a trial

strategy designed to utilize helpful hearsay testimony. See Snow v. Sirmons, 474

F.3d 693, 721 (10th Cir. 2007) (observing that when “[t]he failure to object

appears to be trial strategy[,] . . . it cannot be a ground[ ] for a claim of

ineffective assistance of counsel”). Again, no purpose would have been served by

an evidentiary hearing.

                                   III. C ONCLUSION

      The judgment of the district court is AFFIRMED. 2

                                                       Entered for the Court


                                                       Harris L Hartz
                                                       Circuit Judge




2
       To the extent that this court’s grant of a COA could be read as
including the argument that Kaufman was ineffective for failing to assert a
selective-prosecution defense, we note that Mr. Martinez’s appellate arguments
are couched in terms of his failed motion for discovery to support that defense.
But this court specifically excluded from the COA any issues concerning
discovery. Consequently, Kaufman’s handling of the selective-prosecution issue
is not before us.

                                           -11-
