FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 12, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-6373
(W .D. Oklahoma)
v. (D.C. Nos. CV-05-0299-Fand
CR -02-0036-F)
TO N Y DUO N G ,
Defendant - Appellant.
OR DER
Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.
The matter is before this court on Appellant Tony Duong’s request for a
certificate of appealability (“COA”). Duong seeks a COA so he can proceed with
his appeal from the district court’s denial of the motion he brought pursuant to 28
U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(b) (providing a petitioner may not
appeal the denial of a § 2255 motion unless he first obtains a COA). Because
Duong has not made “a substantial showing of the denial of a constitutional
right,” this court denies Duong’s request for a COA and dismisses the appeal.
See id. § 2253(c)(2).
Following a jury trial, Duong was convicted of drug and money laundering
offenses. On direct appeal, Duong raised three allegations: (1) the evidence was
insufficient to support his convictions, (2) the trial court erred by denying his
motion to reveal the identity of a confidential informant, and (3) the trial court
improperly allowed the admission of his tax returns and financial records. This
court rejected Duong’s allegations of error and affirmed his convictions. See
United States v. Duong, 85 Fed. Appx. 99 (10th Cir. 2003).
Duong filed the instant § 2255 motion on M arch 16, 2005. In addition to a
claim his conviction was obtained by the unconstitutional failure of the
Government to disclose exculpatory evidence, Duong raised several allegations of
ineffective assistance of counsel, including assertions counsel (1) failed to
effectively utilize an interpreter, (2) failed to call key witnesses or present
exculpatory evidence, (3) failed to conduct an adequate pre-trial investigation,
and (4) failed to adequately cross-examine the Government’s key witness. Duong
also claimed the cumulative errors of his trial counsel effectively denied him
adequate counsel. After an evidentiary hearing, the district court denied D uong’s
motion, setting out its findings of fact and legal conclusions in a comprehensive
memorandum opinion and order. Specifically, the court ruled there was an “entire
failure of proof” on all issues except those related to the interpreter. As to that
claim, the court applied the test set out in Strickland v. Washington, 466 U.S. 668,
687 (1984), and concluded Duong was not entitled to habeas relief because he
failed to show his counsel’s performance fell below an objective standard of
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reasonableness. In the alternative, the court concluded Duong failed to carry his
burden of establishing he was prejudiced by his counsel’s performance.
This court cannot grant Duong a COA unless he can 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) (quotations omitted). In evaluating whether
Duong has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. M iller-El v. Cockrell, 537 U.S. 322, 338 (2003). Duong is not required
to demonstrate his appeal will succeed to be entitled to a COA. He must,
however, “prove something more than the absence of frivolity or the existence of
mere good faith.” Id. (quotations omitted).
This court has reviewed Duong’s appellate brief, the district court’s
memorandum and order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in M iller-El and concludes Duong is not
entitled to a COA. Duong has wholly failed to sustain his burden of
demonstrating he was prejudiced by his counsel’s alleged deficient performance
in failing to effectively utilize the court-appointed interpreter. See United States
v. Orange, 447 F.3d 792, 796-97 (10th Cir. 2006) (“Because [a defendant] must
demonstrate both Strickland prongs to establish his claim, a failure to prove either
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one is dispositive.” (citation omitted)). Further, Duong has abandoned the other
four claims raised in his § 2255 motion by failing to include them in his appellate
brief.
The district court’s resolution of Duong’s claims is not reasonably subject
to debate and the claims are not adequate to deserve further proceedings.
Accordingly, Duong has not “made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This court denies his request for a
COA and dismisses this appeal.
Entered for the Court
Elisabeth A . Shumaker, Clerk
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