                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 20, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-2196
                                              (D.C. Nos. 1:16-CV-01204-PJK-KRS and
RAYVELL VANN,                                         1:12-CR-00966-PJK-1)
                                                             (D. N.M.)
      Defendant - Appellant.
                      _________________________________

      ORDER DENYING CERTIFICATE OF APPEALABILITY*
                _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

      Petitioner Rayvell Vann, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be taken to the court of

appeals from . . . the final order in a proceeding under section 2255.”). He also seeks

leave to proceed in forma pauperis. We deny the request for a COA and dismiss this

matter, and also deny Vann’s motion to proceed in forma pauperis.




      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
                                           I

      Vann was convicted in 2013 of possession with intent to distribute

phencyclidine (PCP) and codeine. He was sentenced to 180 months’ imprisonment

and eight years of supervised release. On direct appeal, we affirmed the conviction

and sentence. United States v. Vann, 776 F.3d 746 (10th Cir. 2015). The Supreme

Court denied certiorari. Vann v. United States, 136 S. Ct. 434 (2015).

      Vann then filed this timely § 2255 motion, arguing that he received ineffective

assistance of counsel at his trial and sentencing in 2013. Vann’s § 2255 motion came

before a magistrate judge, who recommended denying the § 2255 motion. The district

court subsequently adopted the magistrate judge’s findings and recommendation, and

denied a COA. Vann now seeks a COA from this court. In his brief, he continues to

pursue an ineffective assistance of counsel theory and argues that the district court

should have held a hearing to address his motion.1 Aplt. Br. at 2.

                                           II

      To merit a COA, Vann must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This will occur when “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Here, Vann alleges that he received ineffective assistance of counsel. This

requires him to show (1) that his counsel was constitutionally ineffective, and (2) that

      1
        Vann did not explicitly ask for an evidentiary hearing in his § 2255 motion.
ROA, Vol. I at 4–15. Yet, the government construed the filing as asking for a
hearing and provided reasons why a hearing should not occur. See id. at 19–20.
                                           2
the result of his trial would have been different if not for his counsel’s

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

      Vann argues that his two trial attorneys were ineffective because they did not

call Dr. Eugenia Brazwell as a defense witness. Vann hired Brazwell shortly after his

arrest, and had Brazwell conduct an independent test on the liquid the government

seized from Vann to determine whether it contained PCP. Like the government,

Brazwell confirmed the presence of PCP in the sample that she tested. ROA, Vol. I

at 77. In a letter following her test, Brazwell referenced her analysis of a “liquid

drug mixture.” Id. at 50. Yet, later in the same letter, Brazwell referred to her

analysis of urine. Id. If her reference to urine was accurate—and not, as the

magistrate judge proposed, a “scrivener’s error,” Id. at 76—then it would be

inconsistent with the rest of the evidence in the government’s case against Vann, as

well as inconsistent with Brazwell’s report that accompanied the letter in question.2

      Vann argues that his trial counsel was ineffective for not calling Brazwell and

asking her about the reference to urine in her letter. If this testimony had occurred,

Vann argues, the jury could have inferred that both Brazwell and the government

tested the wrong sample for PCP, and that Vann was not guilty of possession with

intent to distribute PCP. In other words, Vann assumes Brazwell’s testimony would

have been admitted as he hoped, and he assumes the outcome of the testimony would

have been to his benefit.


      2
         Brazwell’s report is not in the record. ROA, Vol. I at 76. But it concluded
that the sample she tested contained PCP. See id. at 77.
                                            3
      However, we must consider this issue within the larger context of Vann’s trial,

and determine whether the decision by Vann’s counsel to not question Brazwell

regarding the reference to urine in the letter was a reasonable strategic decision.

“Unlike a later reviewing court, the attorney[s] observed the relevant proceedings,

knew of materials outside the record, and interacted with the client, with opposing

counsel, and with the judge.” Harrington v. Richter, 562 U.S. 86, 105 (2011). In

many cases, when considering the prospect of additional testimony, “it is at least as

reasonable, and maybe more so, to speculate that the testimony of those witnesses

[who were not called] would have damaged defendant’s case.” United States v.

Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986).

      It is very possible that by calling Brazwell and questioning her regarding the

PCP testing, counsel would have only solidified by repetition the same PCP results

found by the government’s expert. This sort of possibility is among the reasons that

“[s]trategic or tactical decisions on the part of counsel are presumed correct unless

they were completely unreasonable, not merely wrong, so that they bear no

relationship to a possible defense strategy.” Moore v. Marr, 254 F.3d 1235, 1239

(10th Cir. 2001) (citations and quotations omitted).

      Given that case law describing the broad sweep of discretion in trial strategy

forecloses Vann’s claim that his trial counsel was ineffective, Vann was not entitled

to an evidentiary hearing on the matter—which would have been a “futile venture.”

United States v. Stine, ___ F. App’x ___, No. 17-1368, 2018 WL 258769, at *3 (10th

Cir. Jan. 2, 2018).

                                           4
      Finally, “because [Vann] has failed to present a nonfrivolous argument in

support of the issues on appeal,” Thomas v. Parker, 609 F.3d 1114, 1121 (10th Cir.

2010), we deny Vann’s motion to proceed in forma pauperis.

                                        III

      We therefore DENY Vann’s motion for a COA and dismiss this matter. We

also DENY his motion to proceed in forma pauperis.


                                          Entered for the Court


                                          Mary Beck Briscoe
                                          Circuit Judge




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