IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50459
USDC No. W-98-CV-3202
USDC No. W-93-CR-96-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH O. COBB,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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December 7, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Keith O. Cobb, federal prisoner # 60806-080, moves this
court for a certificate of appealability (COA) to challenge the
denial of his motion, filed pursuant to 28 U.S.C. § 2255, to
vacate, set aside, or correct his sentence. He asserts that his
counsel rendered ineffective assistance by: (1) refusing to
permit him to testify in his own defense; (2) refusing to call
his mother and Natalie Bradshaw as defense witnesses; and
(3) omitting to explain that information provided by a
confidential informant could be used to enhance his sentence even
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
though the informant did not testify at trial and Cobb was never
given an opportunity to cross examine him. He also urges that
the district court erred in declining his request for an
evidentiary hearing to develop these claims.
To obtain § 2255 relief based on ineffective assistance of
counsel, a movant must show that his counsel’s performance was
deficient and that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687, 694
(1984). The court indulges in “a strong presumption” that
counsel's representation fell “within the wide range of
reasonable professional competence.” Bridge v. Lynaugh, 838 F.2d
770, 773 (5th Cir. 1988). To prove deficient representation, a
defendant must show that her attorney’s conduct “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at
688. To establish prejudice, a movant must show that counsel's
errors were so serious that they deprived the defendant of a
substantive or procedural right to which the law entitled him and
thus rendered the trial proceedings unfair or the result
unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). If
the movant makes an insufficient showing on either the deficient
performance or the prejudice prong of the ineffective assistance
of counsel test, the court need not address the other.
Strickland, 466 U.S. at 697.
“A criminal defendant has a constitutional right to testify
in his own behalf, and this right is granted to the defendant
personally and not to his counsel.” United States v. Martinez,
181 F.3d 627, 628 (5th Cir. 1999) (citing Rock v. Arkansas, 483
No. 99-50459
- 3 -
U.S. 44, 51-53 (1987)). A waiver of this right must be knowing
and voluntary. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.
1997) (§ 2254 petition), cert. denied, 119 S. Ct. 418 (1998).
The district court’s written order did not directly address
Cobb’s assertion that his counsel had denied him his
constitutional right to testify. Rather, the court opined that
counsel’s refusal to permit Cobb to testify had been a matter of
trial strategy that fell within the ambit of reasonable
professional assistance. Cobb’s right to testify, however, is
vested exclusively in him and may not be waived on his behalf by
counsel. See Martinez, 181 F.3d at 628. It thus cannot be a
matter of “sound trial strategy” for counsel to deny a defendant
his right to testify. See id.
Accordingly, we hereby GRANT Cobb a COA on the issue whether
his counsel was ineffective for refusing to permit him to
testify, VACATE the district court’s order denying this claim,
and REMAND for further proceedings.
As for Cobb’s claims that his counsel rendered ineffective
assistance by omitting to call exculpatory witnesses and by
failing to explain that the Government’s confidential informant
likely would not testify at trial, we find that he has failed to
demonstrate with the requisite degree of clarity that he has been
denied a constitutional right. See § 2253(c)(2). Accordingly,
we DENY him a COA with regard to these claims.
COA GRANTED; VACATED AND REMANDED.
United States v. Cobb
Combined Opinion