FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 11, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-Appellee,
No. 07-3094
v. (D.C. Nos. 06-CV-3322-SA C and
04-CR-40003-SAC)
TERRY L. CORBER, (D . Kan.)
Defendant-Appellant.
OR DER *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
Petitioner, a federal prisoner proceeding pro se, seeks a certificate of
appealability to appeal the district court’s denial of his § 2255 habeas petition.
Petitioner contends that he received ineffective assistance of counsel in his trial
for distributing crack cocaine because his attorney had him testify in support of
an entrapment defense when the attorney should have known that the facts w ould
not sustain a jury instruction on entrapment. Petitioner points out that the trial
court’s decision not to instruct the jury on entrapment was affirmed by this court
on direct appeal. United States v. Corber, 159 F. App’x 54 (10th Cir. 2005). H e
*
This order is not binding precedent, except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
argues that he would not have testified had the attorney realized, as he should,
that the entrapment defense “could not prevail” and indeed that Petitioner’s
testimony would prejudice his defense. (Doc. 85, Petitioner’s M emorandum at
12.)
The district court denied the habeas petition, ruling that defense counsel’s
strategy was not unreasonable under the standard set out in Strickland v.
Washington, 466 U .S. 668 (1984). The district court pointed out that defense
counsel’s legal arguments and citations to authority at trial and on appeal showed
that he was aware of the relevant law and of the facts of this case. Although
counsel’s attempts to submit an entrapment defense to the jury were unsuccessful,
the court concluded that this was insufficient to prove that counsel’s performance
was unreasonable. See id. at 688; Boyd v. Ward, 179 F.3d 904, 914 (10th Cir.
1999) (“For counsel’s performance to be constitutionally ineffective, it must have
been completely unreasonable, not merely wrong.”)
To obtain a certificate of appealability, Petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006).
In order to meet this burden, Petitioner must demonstrate “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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
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W e have carefully reviewed Petitioner’s filings, the district court’s
disposition, and the record on appeal. Nothing in these materials raises an issue
which meets our standard for the grant of a certificate of appealability. For
substantially the reasons set forth by the district court, we DENY Petitioner’s
request for a certificate of appealability and DISM ISS the appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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