FILED
United States Court of Appeals
Tenth Circuit
May 13, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5001
MICHAEL DELEVAN ENGLES, (D.C. Nos. 08-CV-193-HE-FHM and
05-CR-104-HE-1)
Defendant-Appellant. (N. D. Okla.)
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.
Michael D. Engles, a federal prisoner appearing pro se, seeks a certificate
of appealability (COA) in order to challenge the district court’s denial of his 28
U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Engles
has failed to satisfy the standards for the issuance of a COA, we deny his request
and dismiss the matter.
I
This court, in addressing Engles’ direct appeal, outlined the procedural
background of his case:
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Michael Engles was indicted on November 9, 2005, in the United
States District Court for the District of Oklahoma on six counts
arising out of vehicle searches in May 2003 and May 2004. Each
search led to three charges: convicted felon in possession of a
firearm and ammunition, see 18 U.S.C. §§ 922(g)(1) and 924(a)(2);
possession with intent to distribute controlled substances, see 21
U.S.C. § 841(a)(1) and (b)(1)(C); and possession of a firearm and
ammunition in furtherance of a drug-trafficking crime, see 18 U.S.C.
§ 924(c)(1)(A). Before his jury trial Mr. Engles moved to suppress
evidence obtained in the first search. After the motion was denied,
he was tried by a jury and found guilty on all counts. On February
24, 2006, the district court sentenced him to 420 months’
imprisonment.
United States v. Engles, 481 F.3d 1243, 1244 (10th Cir. 2007).
On direct appeal, Engles “challeng[ed] the denial of his motion to
suppress,” id., arguing that “his vehicle was unlawfully detained while the
officers awaited [the arrival of a] drug dog, because they lacked reasonable
suspicion to believe it contained contraband.” Id. at 1245. This court concluded
that “reasonable suspicion was unnecessary” because “[t]he officers did not
‘detain’ the vehicle,” but rather “lawfully arrested . . . Engles and his passenger,”
and Engles’ vehicle “was parked” and “going nowhere.” Id. Accordingly, this
court held that “no illegality tainted the actual [May 2004] search,” and affirmed
Engles’ convictions. Id. at 1246. The United States Supreme Court subsequently
denied Engles’ petition for writ of certiorari. Engles v. United States, 128 S.Ct.
242 (2007).
On April 4, 2008, Engles, appearing pro se, filed a 28 U.S.C. § 2255
motion to vacate, set aside, or correct sentence. The motion alleged, in pertinent
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part, that Engles “and his appointed counsel . . . suffered a relationship that was
embroiled in irreconcilable conflict that resulted in a constructive denial of
counsel.” ROA, Vol. 1, Doc. 86 at 7. In connection with this claim, the motion
further alleged that the district court erred in refusing to allow Engles’ appointed
counsel to withdraw. In addition, Engles’ motion alleged that appellate counsel
was ineffective for failing to raise on direct appeal the irreconcilable conflict
issue. 1
On November 25, 2008, the district court issued an order denying Engles’ §
1
Engles’ motion also included two additional claims: (1) whether the
Supreme Court’s decision in Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400,
2407 (2007), holding that passengers in a vehicle are seized for purposes of the
Fourth Amendment when a traffic stop occurs, represented an intervening change
in the law that supported the validity of the suppression claim he raised on direct
appeal and entitled him to habeas relief; and (2) whether the jury instructions
employed in his case were erroneous in light of the Supreme Court’s decision in
Watson v. United States, 128 S.Ct. 579, 586 (2007), in which the Court held that
a person who trades his drugs for a gun does not “use” a firearm for purposes of
18 U.S.C. § 924(c)(1)(A).
The district court denied both of these claims on the merits. More
specifically, the district court concluded that Brendlin was inapposite, since Engle
was the driver of, rather than a passenger in, the vehicle that was searched, and
because the search at issue occurred after Engle and his passenger had been
placed under arrest. Thus, the court concluded Engle was “not entitled to habeas
relief on the basis of the search of his automobile.” ROA, Doc. 93 at 3. Further,
the district court rejected Engles’ Watson-based claim on three grounds: because
Watson was charged under the “possession in furtherance” prong of 18 U.S.C. §
924(c) rather than the “use” prong, id., because “[t]he jury was not instructed that
[Engles] could be convicted under § 924(c) if it found that he had obtained the
firearms in exchange for drugs,” id. at 4 n.5, and because “there was no evidence
that the firearms charged in the indictment were obtained by [Engles] in exchange
for drugs,” and instead the evidence at trial established that Engles “possessed the
firearms in furtherance of drug trafficking.” Id. at 4.
Engles does not seek a COA with respect to either of these claims.
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2255 motion. Turning first to Engles’ claim that there was an irreconcilable
conflict between himself and his trial attorney, the district court concluded that
the purported evidence of a communication breakdown between Engles and his
attorney, i.e., Engles’ “refusal to allow his counsel to cross-examine one of the
government’s witnesses, Kim Dixon [the passenger in his vehicle at the time of
the challenged search and his purported common-law wife],” was “not a lack of
communication, but [rather] a disagreement regarding trial strategy, which ‘is
generally not a basis for ineffective assistance of counsel.’” Id. at 5 (quoting
United States v. Ambort, 282 Fed. App’x 714, 717 (10th Cir. 2008)). Further, the
district court rejected as “unpersuasive” Engles’ assertion “that he and his
attorney ‘had not discussed important decisions needing to be made, such as
whether Engles would testify on his own behalf . . . .’” Id. (quoting ROA, Vol. 1,
Doc. 86 at 9). In particular, the district court noted that the transcript page cited
by Engles in support of this assertion “reflect[ed] only that a decision as to
whether [Engles] was going to testify had not yet been made, not that [Engles]
and his attorney had not discussed whether he would take the stand.” Id. at 5-6.
In addition, the district court noted that it had “conducted a hearing on the motion
to withdraw” that was filed by defense counsel at Engles’ direction. Id. at 6.
During that hearing, the district court noted, Engles, “[w]hen specifically asked
by the court to explain the basis for his dissatisfaction with his lawyer,” “cited the
lack of a preliminary hearing and his counsel’s failure to file a motion to suppress
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[the results of the May 2004 search],” but “did not assert any concern that his
attorney did not fully represent his interests.” Id. “After being apprised of the
circumstances surrounding both the 2004 search and counsel’s decision not to
move to suppress evidence obtained during that search,” the district court noted, it
“concluded that [Engles] was not entitled to new counsel as his disagreements
with his attorney essentially were over matters of trial strategy.” Id. at 6-7. In
sum, the district court concluded, “[t]he record d[id] not show an irreconcilable
conflict or demonstrate that defense counsel’s representation of . . . Engles fell
below the standard demanded of attorneys in criminal cases.” Id. at 7. Finally,
having rejected Engles’ irreconcilable conflict claim, the district court concluded
that Engles was not prejudiced by his appellate counsel’s failure to raise that
claim on direct appeal.
Engles filed a timely notice of appeal and a request for COA. The district
court denied Engles’ request for COA. Engles has now renewed his request for
COA with this court.
II
The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A
COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To make such a
showing, an applicant must demonstrate “that reasonable jurists could debate
5
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)
(citation and internal quotation marks omitted).
Generally, a criminal defendant claiming a violation of his Sixth
Amendment right to effective assistance of counsel must demonstrate that (1)
counsel’s performance fell below an objective standard of reasonableness; and (2)
counsel’s deficient performance prejudiced the defendant so that, but for
counsel’s errors, there was a reasonable probability the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984). If, however, the defendant can demonstrate that there was “[a] complete
breakdown in communication” between himself and his attorney, United States v.
Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988), a presumption of
ineffectiveness will arise, making it unnecessary for the defendant to satisfy the
two-pronged Strickland test. United States v. Cronic, 466 U.S. 648, 658 (1984).
In determining whether a purported breakdown in the attorney-client
relationship has rendered a defendant’s representation constitutionally deficient,
we consider several elements, including the following: (1) whether the defendant
made a timely motion requesting new counsel; (2) whether the court adequately
inquired into the matter; (3) whether the conflict between the defendant and his
attorney was “so great that it resulted in a total lack of communication preventing
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an adequate defense”; and (4) whether the defendant substantially and
unjustifiably contributed to the breakdown in communication. Romero v.
Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000).
Here, Engles’ appointed trial counsel, at Engles’ direction, moved to
withdraw. The district court conducted a hearing on the motion, during which it
heard from both Engles and his attorney. At the conclusion of that hearing, the
district court concluded that an irreconcilable conflict did not exist, and that,
instead, Engles was simply dissatisfied with certain strategic decisions made by
his attorney. Accordingly, the district court denied the motion and Engles’
appointed counsel proceeded to represent Engles at trial. In the course of
revisiting the issue as raised in Engles’ § 2255 motion, the district court also
rejected as unsupported Engles’ assertion that he and his appointed counsel had
not discussed important decisions, including whether Engles would testify at trial
on his own behalf.
In his motion for COA, Engles does not specifically challenge the district
court’s analysis and rejection of his irreconcilable conflict claim. Instead, he
simply asserts that “[t]he [purported] irreconcilable conflict arose[] from the fact
that [he] refused to allow [trial counsel] to cross examine his common-law wife
‘Kim Dixon.’” Mot. at 7. Although it is not entirely clear, Engles appears to be
suggesting that trial counsel became upset upon “learning that he would not be
impeaching the testimony of Ms. Dixon . . . .” Id. Engles also alleges in
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conclusory fashion that, following the district court’s denial of counsel’s motion
to withdraw, counsel “failed to keep [Engles] informed of important
developments, discuss the government’s case-in-chief, []or perfect a defense, i.e.,
strategic strategies.” Id. at 5. Finally, Engles argues, again in conclusory
fashion, that this irreconcilable conflict “lead to a[n] unjust verdict.” Id. at 8.
Having examined Engles’ appellate pleadings and the record on appeal, we
conclude that the arguments forwarded by Engles in his application for COA are
legally frivolous. Moreover, we find the resolution by the district court to be
undebatable. We therefore conclude that Engles has failed to make the requisite
showing for the issuance of a COA with respect to the irreconcilable conflict
issue. And, because Engles’ ineffective assistance of appellate counsel claim
essentially hinges on the merits of his irreconcilable conflict claim, we conclude
that Engles has failed to establish his entitlement to a COA on that issue as well.
The application for COA is DENIED and the matter is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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