                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       April 22, 2011
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 10-8101
 v.
                                                (D.C. Nos. 2:09-CV-00287-ABJ;
                                                    2:07-CR-00246-ABJ-1)
 ANTHONY L. CIOCCHETTI,
                                                           (D. Wyo.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Petitioner Anthony L. Ciocchetti, a pro se litigant incarcerated in the

federal correctional facility in Florence, Colorado, 1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his petition for a

      *
              This order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Ciocchetti is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
writ of habeas corpus filed pursuant to 28 U.S.C. § 2255. Exercising jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a), we DENY Mr. Ciocchetti’s application and

DISMISS his appeal.

                                  BACKGROUND

      In February 2008, Mr. Ciocchetti was convicted by a jury in federal court

on charges of bank fraud, in violation of 18 U.S.C. § 1344, and making materially

false statements in connection with a bank loan application, in violation of 18

U.S.C. § 1014. He was sentenced to sixty-five months’ imprisonment, to be

followed by five years of supervised release, and ordered to pay $460,122 in

restitution. Following his conviction, Mr. Ciocchetti appealed to this court,

challenging only the district court’s calculation of the loss amount at his

sentencing. We affirmed. See United States v. Ciocchetti, 330 F. App’x 745

(10th Cir. 2009).

      Mr. Ciocchetti then filed a petition for a writ of habeas corpus in the United

States District Court for the District of Wyoming, asserting that he received

ineffective assistance of counsel. More specifically, he averred that his trial

attorneys were constitutionally deficient in (1) permitting a constructive

amendment of the indictment, (2) failing to cross-examine witnesses adequately,

(3) not asking for a limiting jury instruction, and (4) not raising a claim of error

under United States v. Booker, 543 U.S. 220 (2005), regarding the district court’s

calculation of his advisory Guidelines sentencing range based upon facts that the

                                         -2-
court found by a preponderance of the evidence. The district court found no merit

to these claims and denied both Mr. Ciocchetti’s § 2255 petition and his request

for an evidentiary hearing. It also denied him a COA. Mr. Ciocchetti now seeks

to appeal.

                           STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a § 2255

motion. 28 U.S.C. § 2253(c)(1)(B); accord Miller-El v. Cockrell, 537 U.S. 322,

336 (2003); United States v. Gonzalez, 596 F.3d 1228, 1241 (10th Cir. 2010).

“We will issue a COA ‘only if the applicant has made a substantial showing of the

denial of a constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th

Cir. 2009) (quoting 28 U.S.C. § 2253(c)(2)); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006). Under this standard, “the applicant must show ‘that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). “In other words, the applicant must show that the district court’s

resolution of the constitutional claim was either ‘debatable or wrong.’” Id.

(quoting Slack, 529 U.S. at 484).

      Importantly, our inquiry does not necessitate a “full consideration of the

factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at

                                        -3-
336. Rather, all that is required is “an overview of the claims . . . and a general

assessment of their merits.” Id. Although Mr. Ciocchetti is not required to

demonstrate that his appeal will succeed in order to obtain a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith

on his or her part.” Id. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893

(1983)) (internal quotation marks omitted).

                                   DISCUSSION

      Mr. Ciocchetti seeks a COA so as to challenge the district court’s denial of

his ineffective assistance of counsel claim. In his application, he reasserts three

of the four grounds that he raised below—viz., that he received ineffective

assistance of counsel when his attorneys (1) allowed a constructive amendment to

the indictment, (2) failed to adequately cross-examine a key witness, and (3) did

not challenge the trial court’s use of “facts” not found by a jury to enhance his

advisory Guidelines range. In addition, Mr. Ciocchetti maintains that “the lower

court ought to have granted an evidentiary hearing to resolve the genuine material

facts at issue between what [Mr. Ciocchetti] claimed in his [original habeas

petition] and what [the government] said excused [its] willful misrepresentation

of the facts and evidence.” Aplt. Combined Opening Br. & COA Appl. at iv.

I.    Ineffective Assistance of Counsel Claims

      Where a “COA application rests on claims of ineffective assistance of

counsel, in order to determine if [a movant] can make a substantial showing of the

                                         -4-
denial of a constitutional right we must undertake a preliminary analysis . . . in

light of the two-part test for ineffective assistance” articulated in Strickland v.

Washington, 466 U.S. 668 (1984). United States v. Harris, 368 F. App’x 866,

868 (10th Cir. 2010). “Under Strickland, [a movant] must show that counsel’s

performance fell below an objective standard of reasonableness as measured

against prevailing professional norms, and he must show that there is a reasonable

probability that the outcome would have been different but for counsel’s

inadequate performance.” Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir.

2008) (citing Strickland, 466 U.S. at 688).

      “When, as here, [a] basis for the ineffective assistance claim is the failure

to raise an issue, we must look to the merits of the omitted issue.” United States

v. Orange, 447 F.3d 792, 797 (10th Cir. 2006). “If the omitted issue is without

merit, counsel’s failure to raise it ‘does not constitute constitutionally ineffective

assistance of counsel.’” United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995)

(quoting United States v. Dixon, 1 F.3d 1080, 1084 n.5 (10th Cir. 1993)); accord

Orange, 447 F.3d at 797; cf. Smith v. Robbins, 528 U.S. 259, 288 (2000)

(“[A]ppellate counsel who files a merits brief need not (and should not) raise

every nonfrivolous claim, but rather may select from among them in order to

maximize the likelihood of success on appeal.” (citing Jones v. Barnes, 463 U.S.

745, 751–52 (1983))).




                                          -5-
      A.     Constructive Amendment Claim

      In his application, Mr. Ciocchetti first asserts that his trial attorneys

rendered constitutionally ineffective assistance of counsel by failing to object to

the constructive amendment of the Indictment. Count Three of the Indictment

provided:

             On or about November 29, 2006, at Gillette, in the District of
             Wyoming, the Defendant, ANTHONY L. CIOCCHETTI, did
             knowingly make materially false statements for the purpose of
             influencing the actions of Bank of the West, the deposits of
             which were then insured by the Federal Deposit Insurance
             Corporation, and in connection with the Defendant’s acquisition
             of two lines of credit totaling $125,500, which statements
             included: the use of false IRS Individual Tax Returns . . . .

R. at 255 (Dist. Ct. Order Denying Mot. to Vacate Sentence Pursuant to 28 U.S.C.

§ 2255, filed Nov. 3, 2010) (emphasis added). At trial, however, the government

failed to prove the IRS tax returns were false, and a jury instruction was

subsequently submitted as to Count Three that replaced the IRS tax returns with a

Merrill Lynch account statement that had been proven false. As he did before the

district court, Mr. Ciocchetti argues that this change resulted in a constructive

amendment of the Indictment. Furthermore, he claims that “counsel ought to

have objected to the constructive amendment, if for no other reason than it came

after defense rested.” Aplt. Combined Opening Br. & COA Appl. at 16.

      The district court dismissed Mr. Ciocchetti’s constructive-amendment claim




                                         -6-
on the grounds that, at most, the jury instruction effectuated a non-prejudicial

variance, rather than a constructive amendment, and thus his attorneys were not

ineffective for failing to challenge it. Reasonable jurists could not disagree with

this resolution. A constructive amendment occurs when

             the Government, through evidence presented at trial, or the
             district court, through instructions to the jury, broadens the basis
             for a defendant’s conviction beyond acts charged in the
             indictment. To constitute a constructive amendment, the district
             court proceedings must modify an essential element of the
             offense or raise the possibility that the defendant was convicted
             of an offense other than that charged in the indictment. Where
             an indictment properly pleads violation of a statute, and the
             defendant was not misled about the nature of the charges, his
             substantive rights are not prejudiced.

United States v. Cruz-Rodriguez, 570 F.3d 1179, 1182 (10th Cir. 2009) (quoting

United States v. Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002)) (internal quotation

marks omitted); accord United States v. Farr, 536 F.3d 1174, 1180 (10th Cir.

2008). A constructive amendment “is reversible per se.” United States v. Vigil,

523 F.3d 1258, 1265 (10th Cir. 2009). In contrast, “[a] simple variance arises

when the evidence adduced at trial establishes facts different from those alleged

in the indictment, and triggers harmless error analysis.” United States v. Sells,

477 F.3d 1226, 1237 (10th Cir. 2007).

      The district court was clearly correct in its determination that the trial

court’s substitution of the Merrill Lynch account statement for the IRS tax returns

in the jury instruction did not amount to a constructive amendment. The


                                         -7-
Indictment charged Mr. Ciocchetti in general terms, indicating that the false

statements included the IRS tax returns. This language broadened rather than

limited the Indictment, thereby allowing the government to use evidence beyond

the IRS tax returns to show the use of false statements without “misle[ading Mr.

Ciocchetti] about the nature of the charge[]” against him. Cruz-Rodriguez, 573

F.3d at 1182 (emphasis added) (quoting Van Tieu, 279 F.3d at 921) (internal

quotation marks omitted); see Stirone v. United States, 361 U.S. 212, 218 (1960)

(stating that, under an indictment “drawn in general terms,” a conviction might

rest on a showing of evidence beyond that which is specifically identified in the

indictment); cf. United States v. Rivera, 837 F.2d 906, 929 (10th Cir. 1988)

(“[A]n indictment may be drafted in general terms so long as it apprises the

defendant of the nature of the charge against him.”), vacated on other grounds,

900 F.2d 1462 (10th Cir. 1990) (en banc). Thus, Mr. Ciocchetti fails to satisfy

the first prong of Strickland: in not advancing the clearly meritless proposition

that the jury instruction resulted in a constructive amendment, his attorneys’

performance did not “f[a]ll below an objective standard of reasonableness.”

Strickland, 466 U.S. at 687; see also Cook, 45 F.3d at 393 (noting that counsel is

not ineffective for failing to bring meritless claims); cf. United States v. Gibson,

55 F.3d 173, 179 (5th Cir. 1995) (“Counsel is not required by the Sixth

Amendment to file meritless motions.”).




                                         -8-
      Furthermore, even if we assume, arguendo, that the government’s

substitution of the Merrill Lynch statement resulted in a simple variance, Mr.

Ciocchetti—as the district court noted—was not prejudiced by it, and, as a result,

his attorneys’ failure to raise a challenge based upon this substitution cannot

satisfy the second prong of Strickland either. “A variance will cause a conviction

to be overturned only when . . . ‘the defendant is prejudiced in his defense

because he cannot anticipate from the indictment what evidence will be presented

against him or is exposed to the risk of double jeopardy.’” United States v.

Hamilton, 992 F.2d 1126, 1130 (10th Cir. 1993) (quoting Hunter v. New Mexico,

916 F.2d 595, 599 (10th Cir. 1990)). Neither situation is applicable here.

      First, Mr. Ciocchetti received adequate notice that the veracity of the

Merrill Lynch account statement was at issue—it was listed in the Indictment

under another charge, and Mr. Ciocchetti defended against it at trial. See United

States v. Boston, 718 F.2d 1511, 1516 (10th Cir. 1983) (“We . . . believe that

Boston had ample notice from the indictment of the acts for which he was to be

tried. The convictions were not based on facts outside the scope of the indictment

[as a whole] . . . .” (citation omitted)); United States v. Tomasetta, 429 F.2d 978,

979 (1st Cir. 1970) (recognizing that the “question is whether the indictment as a

whole conveys sufficient information to properly identify the conduct relied upon

by the grand jury in preferring the charge” (emphasis added)); see also United

States v. Withers, 210 F.3d 391, 2000 WL 376619, at *3 (10th Cir. Apr. 13, 2000)

                                         -9-
(unpublished table decision) (“The indictment in this case, read as a whole,

clearly appraised Withers of the charges against him and, thus, was sufficient.”

(footnote omitted)).

      Second, the change between the Indictment and the jury instruction did not

expose Mr. Ciocchetti to a potential double-jeopardy risk because, “[f]or purposes

of barring a future prosecution, it is the judgment and not the indictment alone

which acts as a bar, and the entire record may be considered in evaluating a

subsequent claim of double jeopardy.” United States v. Whitman, 665 F.2d 313,

318 (10th Cir. 1981) (emphasis added) (quoting United States v. Henry, 504 F.2d

1335, 1338 (10th Cir. 1974)) (internal quotation marks omitted); see also Boston,

718 F.2d at 1515. The record in this case clearly identifies the basis for Mr.

Ciocchetti’s convictions, giving him ample protection against future prosecution

for the same crimes.

      Accordingly, even if a simple variance did occur, it was harmless, and Mr.

Ciocchetti, therefore, cannot show prejudice as a result. Because his claim does

not satisfy either prong of Strickland, Mr. Ciocchetti has failed to make a

substantial showing of a denial of a constitutional right based on his attorneys’

failure to raise this challenge. Reasonable jurists could not disagree with this

outcome.




                                        - 10 -
      B.     Failure to Adequately Cross-Examine Claim

      Mr. Ciocchetti next maintains that his attorneys were constitutionally

ineffective because they failed to adequately cross-examine Feron Ferguson, the

president of Pinnacle Bank, regarding two insufficient funds checks that

eventually served as the basis for his conviction of bank fraud, in violation of 18

U.S.C. § 1344. 2 Mr. Ciocchetti claims that Mr. Ferguson “knew when he received

the January 2 and 6 checks that they were not good,” and that this “defeats any

argument that [he] intended to defraud the Pinnacle Bank through the presentment

of these checks.” Aplt. Combined Opening Br. & COA Appl. at 18. At trial,

however, Mr. Ferguson denied knowing the accounts were overdrawn when he

attempted to deposit the two checks—totaling $90,000—that Mr. Ciocchetti had

given him. Mr. Ciocchetti argues that he provided his attorneys with strong

evidence to the contrary, and that they nevertheless refused to adequately

challenge Mr. Ferguson’s testimony. He contends that his attorneys’ actions were


      2
               In this application, Mr. Ciocchetti asserts that his attorneys were
ineffective not only for failure to competently cross-examine Mr. Ferguson, but
also for “fail[ure] to investigate the facts and interview witnessess who would
have verified” his account. Aplt. Combined Opening Br. & COA Appl. at 17.
Beyond this cursory reference, however, Mr. Ciocchetti makes no effort to
develop his failure-to-investigate claim, and, therefore, we will not address it
further. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”); see also Matthews v.
McKune, 133 F. App’x 512, 514 (10th Cir. 2005) (recognizing that the appellant’s
claim on appeal had been “abandoned” because, although “his motion for a COA
. . . briefly assert[ed]” the claim, “he d[id] not brief the issue”).

                                        - 11 -
blatantly prejudicial as, had his attorneys “cross-examined [Mr. Ferguson]

effectively, the jury would have seen through his lies in an instant.” Id. at 19.

      We need not tarry long on this issue. Even assuming that Mr. Ciocchetti’s

attorneys should have more vigorously questioned Mr. Ferguson, and thus the

first prong of the Strickland test was met, Mr. Ciocchetti cannot show prejudice

as a result. “Under § 1344, ‘the intent necessary for a bank fraud conviction is an

intent to deceive the bank in order to obtain from it money or other property.’”

United States v. Gallant, 537 F.3d 1202, 1223 (10th Cir. 2008) (emphasis added)

(quoting United States v. Kenrick, 221 F.3d 19, 26–27 (1st Cir. 2000) (en banc)).

Accordingly, we have held that “[i]t is the financial institution itself—not its

officers or agents—that is the victim of the fraud [18 U.S.C. § 1344] proscribes.”

United States v. Waldroop, 431 F.3d 736, 742 (10th Cir. 2005) (second alteration

in original) (quoting United States v. Saks, 964 F.2d 1514, 1518–19 (5th Cir.

1992)) (internal quotation marks omitted); see also United States v. Rackley, 986

F.2d 1357, 1361 (10th Cir. 1993) (“Defendant confuses the notion of defrauding a

federally insured bank with the idea of defrauding its owner or directors. It is the

financial institution itself—not its directors or agents—that is the victim of the

fraud the statute proscribes.”). “Thus, even if [a bank official] kn[ows] the true

nature of [a] transaction[], the institution[] could nevertheless be defrauded.”

Rackley, 986 F.2d at 1361; see also Gallant, 537 F.3d at 1224 n.13 (collecting

cases).

                                         - 12 -
      As a result, even had Mr. Ciocchetti’s attorneys done exactly what he now

claims they should have done, and thereby revealed that Mr. Ferguson knew there

were insufficient funds in the relevant accounts to cover the disputed checks, that

would not preclude—as Mr. Ciocchetti seems to believe—a finding that he

committed bank fraud. At most, it would have shown that Mr. Ferguson was

complicit in Mr. Ciocchetti’s fraud, and “[j]ust because [Mr. Ferguson] w[as]

complicit in the scheme does not mean that [Pinnacle Bank], as an institution,

knew or approved of what [Mr. Ciocchetti] w[as] doing.” Gallant, 537 F.3d at

1225. Consequently, Mr. Ciocchetti cannot establish prejudice based upon his

attorneys’ failure to cross-examine Mr. Ferguson, and therefore cannot satisfy the

second prong of the Strickland standard. Thus, reasonable jurists could not

disagree with the district court’s resolution of this claim.

      C.     Booker Sentencing Claim

      In addition, Mr. Ciocchetti claims that his attorneys were ineffective in

failing to object when, at sentencing, the district court determined—allegedly in

error—that he intended losses of over $5,000,000. The court’s finding, which

was based on a preponderance of the evidence, resulted in the court adding

eighteen points to his base offense level of seven. This, in turn, yielded an

advisory Guidelines range of fifty-seven to seventy-one months of imprisonment,

well above the thirty to thirty-seven month range that he claims would otherwise

be applicable.

                                         - 13 -
      Mr. Ciocchetti maintains that “the lower court burst through its prescribed

jurisdiction and authority” when it “decided on a civil standard of preponderance

of the evidence” that the total amount actually exceeded the $232,724.74 in losses

that the jury found using the beyond-a-reasonable-doubt standard. Aplt.

Combined Opening Br. & COA Appl. at 26. As he understands it, “[a]ny

additional alleged losses were separate crimes [from the crimes of conviction] . . .

and were not jury-found,” and therefore the district court “exceeded [its]

jurisdiction when [it] found [him] guilty on charges which carried their own

prison-time sanctions, then used this preponderance-of-the-evidence-found-guilt

to . . . impose[] a sentence of up to three years longer than the . . . range

authorized.” Id. at 28–29. Mr. Ciocchetti believes that, “[h]ad counsel not

provided ineffective assistance [by not challenging the district court’s actions in

this regard], there is more than a reasonable probability that the result of the

sentencing proceeding and/or the direct appeal would have been different.” Id. at

28.

      The district court found no merit to Mr. Ciocchetti’s underlying claim, and

we agree. Under the post-Booker advisory Guidelines regime, “[t]he Sixth

Amendment is not violated when a district court finds additional facts by a

preponderance standard in order to calculate an advisory Guidelines range.”

United States v. Urbano, 563 F.3d 1150, 1156 (10th Cir.), cert. denied, 130 S. Ct.

434 (2009); accord United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.

                                          - 14 -
2005); United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005). There is

nothing in the record to suggest that the district court treated the calculated

Guidelines range as anything other than advisory, and consequently there was no

constitutional violation in the district court’s use of facts found only by a

preponderance of the evidence to enhance Mr. Ciocchetti’s sentence. 3 See United

States v. Townley, 472 F.3d 1267, 1276 (10th Cir. 2007) (“Appellant incorrectly

argues that Booker error occurs any time a district court enhances a sentence

based on facts not found by a jury. Rather, after Booker, a district court is not

precluded from relying on judge-found facts in determining the applicable

Guidelines range so long as the Guidelines are considered as advisory rather than

mandatory.”).

      We have repeatedly affirmed this principle in similar situations. See, e.g.,

United States v. Washington, 634 F.3d 1180, 1184 (10th Cir. 2011) (instructing


      3
              Mr. Ciocchetti faults the district court for not considering the
Supreme Court’s holding in Cunningham v. California, 549 U.S. 270 (2007),
when addressing this claim. See Aplt. Combined Opening Br. & COA Appl. at
24–25. Cunningham, Mr. Ciocchetti suggests, stands for the proposition that “any
[judge-found] fact which increases the sentence to which a defendant is exposed
violates the Sixth Amendment.” Id. at 25. Mr. Ciocchetti, of course, reads
Cunningham too broadly. Cunningham addressed this question in the context of
the California sentencing guidelines, which—unlike the federal sentencing
guidelines—are mandatory. See Cunningham, 549 U.S. at 277. For this reason,
we have previously rejected calls to reconsider our jurisprudence on this issue in
the wake of Cunningham, and we do so again today. See United States v. Ellis,
525 F.3d 960, 966 (10th Cir. 2008) (refusing to “revisit our decision[s] in light
of . . . Cunningham” because “California law called for mandatory sentencing,
unlike the federal Sentencing Guidelines rendered advisory by Booker”).

                                         - 15 -
that a court, when making a net loss calculation for a fraud under U.S.S.G.

§ 2B1.1(b), “may use loss information that is supported by a preponderance of the

evidence”); United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir. 2008) (“[W]e

recognize that the government has the burden of proving loss [under U.S.S.G.

§ 2B1.1(b)(1)] by a preponderance of the evidence.”); United States v. Galloway,

509 F.3d 1246, 1251 (10th Cir. 2007) (“The government has the burden of

proving actual and intended loss by preponderance of the evidence.”); see also

United States v. Dazey, 242 F. App’x 563, 568, 572–73 (10th Cir. 2007)

(affirming the district court’s imposition of a twenty-level enhancement under

U.S.S.G. § 2B1.1(b)(1)(K) for losses of more than $7,000,000 based on the

preponderance of the evidence, despite the jury’s finding that only $2,292,500

went directly to the defendant as a result of his role in a large-scale investment

fraud conspiracy); cf. United States v. Rodriguez-Felix, 450 F.3d 1117, 1131

(10th Cir. 2006) (approving the district court’s use of uncharged conduct, proved

by a preponderance of the evidence, to increase the total quantity of drugs

attributed to the defendant). Accordingly, Mr. Ciocchetti has failed to make a

substantial showing of the denial of a constitutional right in this regard.

Reasonable jurists thus could not disagree with the district court’s resolution of

this claim.




                                         - 16 -
II.   Evidentiary Hearing Request

      Finally, Mr. Ciocchetti challenges the district court’s denial of his request

for an evidentiary hearing. We review the district court’s decision to deny an

evidentiary hearing for abuse of discretion. Hooks v. Workman, 606 F.3d 715,

731 (10th Cir. 2010).

      Mr. Ciocchetti suggests that an evidentiary hearing is necessary so as to

“enable [him] to demonstrate the fact that [Mr.] Ferguson’s claims were

incredible and unbelievable in light of . . . what he did, said, and the evidence

presented.” Aplt. Combined Opening Br. & COA Appl. at 23. As discussed

above, however, each of Mr. Ciocchetti’s claims are “resolvable solely on the

basis of the existing record.” Hooks, 606 F.3d at 731; see also 28 U.S.C.

§ 2255(b) (stating that an evidentiary hearing is not required where “the motion

and the files and records of the case conclusively show that the prisoner is

entitled to no relief”). As such, the district court did not abuse its discretion in

denying Mr. Ciocchetti’s request for an evidentiary hearing.




                                         - 17 -
                              CONCLUSION

     For the foregoing reasons, we DENY Mr. Ciocchetti’s application for a

COA and DISMISS his appeal.

                                   ENTERED FOR THE COURT



                                   Jerome A. Holmes
                                   Circuit Judge




                                    - 18 -
