Nos. 4:16-CV-00310-JHP-FHM and 4:12-CR-00050-JHP-9) (N.D.
LUCERO, HARTZ, and McHUGH, Circuit Judges.
L Hartz, Circuit Judge.
DeJuan Leshae Hill seeks a certificate of appealability (COA)
to appeal the dismissal by the United States District Court
for the Northern District of Oklahoma of his motion for
relief under 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (requiring a COA to appeal denial of a
§ 2255 motion). We deny a COA and dismiss the appeal.
February 15, 2013, a jury found Defendant guilty of
conspiring to obstruct, delay, or affect commerce by robbery,
see 18 U.S.C. § 1951; obstructing, delaying,
and affecting commerce by robbing a branch of Arvest Bank,
see id.; and possessing a firearm in furtherance of
the Arvest Bank robbery, see 18 U.S.C. §
924(c)(1)(A). The court sentenced him to 162 months'
imprisonment. After this court affirmed his conviction in May
2015, see United States v. Hill, 786 F.3d 1254, 1257
(10th Cir. 2015), Defendant filed his § 2255 motion in
May 2016. The district court denied the motion and a COA.
will 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 requires
“a demonstration that . . . includes showing 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 were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted). In other words, the applicant must
show that the district court's resolution of the
constitutional claim was either “debatable or
wrong.” Id. In reviewing the denial of a
§ 2255 motion, “we review the district court's
legal rulings de novo and its findings of fact for clear
error.” United States v. Garrett, 402 F.3d
1262, 1264 (10th Cir. 2005).
four claims on appeal assert ineffective assistance of
counsel. To prevail on such claims, he must show both that
his counsel's performance was deficient-“that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment”-and that “the
deficient performance prejudiced [his] defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In doing this analysis, “a court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal
quotation marks omitted). Further, to establish that a
defendant was prejudiced by counsel's deficient
performance, he “must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. at 694. “It is not enough for the
defendant to show that the errors had some conceivable effect
on the outcome of the proceeding.” Id. at 693.
“Failure to make the required showing of
either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.” Id. at 700
first argues that he received ineffective assistance because
his counsel, at trial and on direct appeal, failed to
“move for a judgment of acquittal on the basis that
the government never proved there was an agreement between
alleged co-conspirators.” Aplt. Br. at 11
(capitalization omitted). He misstates the facts. As the
district court noted, his counsel at trial and on appeal both
made this sufficiency-of-the-evidence argument.
next argues that he received ineffective assistance at trial
because his trial counsel failed to object to (1)
“improper prosecutorial comments during closing
arguments” and (2) “the use of photo charts that
were not submitted as evidence during the trial.” Aplt.
Br. at 13 (capitalization omitted). The closing-argument
issue concerns a prosecutor's incorrect statement during
closing that a police officer saw Defendant come out of a
particular house under observation. But as the district court
noted, and Defendant does not contest, defense counsel
promptly pointed out the error at closing and the prosecution
then corrected the error for the jury as well. The district
court concluded Defendant was therefore not prejudiced by any
failure of his trial counsel to object.
photo-chart argument is that his trial counsel should have
objected to a compilation of photos the prosecution used as a
demonstrative exhibit that was not admitted as evidence. He
complains that the photos had not previously been shown to
defense counsel. He contests the district court's
statement that “[i]t is clear from the [trial]
transcript that [defense] counsel had obtained in discovery
every photograph which was utilized by the government in its
demonstrative aids.” R. at 171. But he fails to show
that the court's finding was clearly erroneous.
Defendant's purportedly discrediting affidavit sheds no
light on whether defense counsel had reviewed the relevant
third ground on appeal is that his counsel provided
ineffective assistance by failing to argue that the
insufficiency of the prosecution's evidence violated the
Administrative Procedure Act (APA). But he does not, and
could not, explain how the APA has any bearing on criminal
Defendant argues that his trial counsel provided ineffective
assistance by not calling an expert witness to challenge
government expert testimony that Defendant was a certified
member of the 27th St. Hoovers gang. But as the district
court pointed out, to establish prejudice from counsel's
decision not to call an expert witness, a defendant must
identify what his proposed expert would have testified to.
See Boyle v. McKune, 544 F.3d 1132, 1138-39 (10th
Cir. 2008). Defendant has not done so here.
reasonable jurist could debate the district court's
resolution of Defendant's ineffective-assistance claims.
DENY a COA and DISMISS the appeal. We GRANT
Defendant's motion for leave ...