                   UNITED STATES CO URT O F APPEALS

                               TENTH CIRCUIT
                          __________________________

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,

 v.                                                     No. 06-4028
                                                         (D. Utah)
 JUA N A RN ULFO-SAN CH EZ,                   (D.Ct. Nos. 2:05-CV-20-BSJ and
                                                     2:99-CR-641-BSJ)
       Defendant - Appellant.
                      ____________________________

                                      OR DER
                                 Filed M ay 1, 2007


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      Appellant’s petition for rehearing is granted in part, for the purpose of

correcting the order denying a certificate of appealability dated M arch 14, 2007.

In all other aspects, the petition is denied. The amended order, filed nunc pro

tunc to M arch 14, 2007, is attached.


                                             Entered for the Court
                                             Elisabeth A . Shumaker, Clerk


                                             By:
                                                      Deputy Clerk
                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      March 14, 2007
                               TENTH CIRCUIT                        Elisabeth A. Shumaker
                          __________________________                    Clerk of Court

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,

 v.                                                     No. 06-4028
                                                         (D. Utah)
 JUA N A RN ULFO-SAN CH EZ,                   (D.Ct. Nos. 2:05-CV-20-BSJ and
                                                     2:99-CR-641-BSJ)
       Defendant - Appellant.
                      ____________________________

          OR DER DENY ING CERTIFICATE O F APPEALABILITY
                   A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      Juan Arnulfo-Sanchez was convicted on one count of possession of 500

grams or more of a mixture of methamphetamine with the intent to distribute in

violation of 21 U.S.C. § 841(a)(1) in the United States District Court for the

District of Utah. Following the denial of his direct appeal, he filed a M otion to

Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 in the district
court, alleging ineffective assistance of counsel and that his due process rights, as

defined by Brady v. M aryland, 373 U.S. 83 (1963), were violated. The district

court denied the § 2255 motion, without holding an evidentiary hearing. Because

the district court did not rule on whether to grant a certificate of appealability

(C OA) w ithin thirty days, we deem the application for COA denied. 10th Cir. R.

22.1(c). A rnulfo-Sanchez now asks this Court to grant a COA. See 28 U.S.C. §

2253(c).

      A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). “A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). “This means that the applicant must show ‘that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented w ere adequate to deserve encouragement to proceed further.’” United

States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v.

M cDaniel, 529 U.S. 473, 484 (2000)).

      A. Ineffective Assistance of Counsel

      Arnulfo-Sanchez argues his trial counsel was ineffective in several

respects. He claims his counsel: 1) failed to conduct pre-trial investigation of his

case before counseling him to reject a plea-agreement; 2) inadequately performed

at trial by not hiring a handwriting expert and calling Arnulfo-Sanchez’s w ife to

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testify; 3) failed to contend, at sentencing, the methamphetamine was not

consumable; and 4) had a financial conflict of interest.

      To prevail on a claim his trial counsel was constitutionally ineffective,

Arnulfo-Sanchez “must show that counsel's representation fell below an objective

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

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “Judicial

scrutiny of counsel's performance must be highly deferential.” Id. at 689. Thus,

“the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id.

      Arnulfo-Sanchez argues his counsel failed to conduct a reasonable pre-trial

investigation of the case. The district court reviewed the docket and found

counsel had filed “numerous pre-trial motions each addressing various evidentiary

issues relating to the case.” (R . at 146.) W e agree counsel’s filings indicate

counsel engaged the evidence in the case. In addition, Arnulfo-Sanchez has failed

to explain how the alleged trial errors would have had a “reasonable probability”

of affecting the outcome of the case. Strickland, 466 U.S. at 694. Arnulfo-

Sanchez argues counsel’s trial performance was constitutionally inadequate

because he did not hire a handwriting expert. Although there was an issue

regarding the authorship of certain “pay-owe sheets” offered into evidence at

trial, Arnulfo-Sanchez provides no evidence demonstrating testimony by such an

                                          -3-
expert would have affected the outcome of the trial. He also alleges ineffective

assistance because counsel called his wife to testify. According to Arnulfo-

Sanchez, his wife testified “that the family income w as modest, and she was not

aware that [Arnulfo-Sanchez] had in his possession the sum of $991.00.” The

actual transcript of this testimony is not a part of the record on appeal. In any

event, we are reluctant to interfere with counsel’s strategic decisions, especially

where Petitioner has not shown counsel did not have some strategic reason for his

actions. See Strickland, 466 U.S. at 689 (Supreme Court hesitant to “interfere

with the constitutionally protected independence of counsel and restrict the wide

latitude counsel must have in making tactical decisions.”). Arnulfo-Sanchez did

not demonstrate a reasonable probability counsel’s choices would have affected

the outcome of the trial.

      The same reasoning defeats Arnulfo-Sanchez’s complaint about counsel’s

ineffectiveness at sentencing because he did not address, given the fact the drugs

were only 28% pure methamphetamine, whether the mixtures were consumable.

As the government pointed out in its brief before the district court, Note B to the

Drug Quantity Table of § 2D1.1 defines the term "methamphetamine (actual)" as

“the weight of the controlled substance, itself, contained in the mixture or

substance.” See USSG § 2D1.1 n.B (2004). The guidelines recommend the

sentencing court “use the offense level determined by the entire weight of the

mixture or substance, or the offense level determined by the weight of the PCP

                                          -4-
(actual), amphetamine (actual), or methamphetamine (actual), whichever is

greater.” Id. This Court presumes the district court considered the guidelines.

United States v. Goldberg, 295 F.3d 1133, 1141 (10th Cir. 2002) (“Although it

is not entirely clear from that statement what methodology the district court

employed, we will presume that the district court employed a methodology based

on the Guidelines.”). Because Arnulfo-Sanchez has provided no record-indication

to the contrary, we presume counsel’s failure to raise the purity issue, in light of

the guidelines framew ork, did not change the outcome of the sentencing.

       Finally, Arnulfo-Sanchez claims his counsel was improperly financially

motivated when he advised Arnulfo-Sanchez to choose to go to trial instead of

accepting a plea bargain. As the district court held, however, there is no evidence

supporting the allegation counsel put his own financial interests ahead of his

client’s interests.

       B. Alleged Brady Violation

       In addition, Arnulfo-Sanchez alleges a violation of the rule announced in

Brady. He argues the government improperly suppressed handwriting analysis

evidence. This Court, however, has already found this claim without merit in

Arnulfo-Sanchez’s direct appeal. See United States v. Arnulfo-Sanchez, 71 Fed.

App. 35, 39-41 (2003) (unpublished). “An issue disposed of on direct appeal

will generally not be reconsidered on a collateral attack by a motion pursuant to

28 U.S.C. Section 2255.” United States v. Nolan, 571 F.2d 528, 530 (10th Cir.

                                          -5-
1978). Furthermore, our decision in Petitioner’s direct appeal on the Brady issue

is binding in this case. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.

1998) (“The law of the case doctrine posits that when a court decides upon a rule

of law, that decision should continue to govern the same issues in subsequent

stages in the same case.”) (internal quotations omitted). The issue is not

reasonably debatable.

      C. District court’s refusal to hold an evidentiary hearing

      Arnulfo-Sanchez’s final complaint alleges the district court erred by

refusing to hold an evidentiary hearing on these matters. “W e review the district

court's refusal to hold an evidentiary hearing for an abuse of discretion.” United

States v. H arm s, 371 F.3d 1208, 1210 (10th Cir. 2004). As discussed above,

Petitioner has not produced enough evidence showing a “plausible” claim of

constitutional violation. See United States v. Cox, 83 F.3d 336, 341 (10th Cir.

1996) (District court did not err in declining to hold an evidentiary hearing where

defendant “failed to show his counsel’s performance was constitutionally

deficient.”). Therefore, the district court did not err in declining to hold an

evidentiary hearing.

      The district court’s order of dismissal is not reasonably debatable. Taylor,

454 F.3d at 1078. Arnulfo-Sanchez has failed to make a sufficient showing he is




                                          -6-
entitled to a COA. The request for a COA is denied and the application is

dismissed.

                                      Entered by the C ourt:

                                      Terrence L. O ’Brien
                                      United States Circuit Judge




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