FILED United States Court of Appeals Tenth Circuit
February 10, 2012 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-3286 (D.C. Nos. 6:07-CR-10076-JTM-1 v. and 6:11-CV-01082-JTM) (D. Kan.) KEVIN HINSON,
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Kevin Hinson, a federal prisoner, seeks a certificate of appealability (“COA”) to
challenge the district court’s denial of his motion for relief under 28 U.S.C. § 2255.1 We
deny Mr. Hinson’s application for a COA and dismiss this matter.
* This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Mr. Hinson is represented by counsel, his filings are not entitled to the generous construction that we ordinarily afford pro se pleadings. See Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). I. Background
The case against Mr. Hinson began with the investigation of suspected drug dealer
Mac Pingry. After police discovered methamphetamine and marijuana at Mr. Pingry’s
residence in November 2005, Mr. Pingry fingered Mr. Hinson as his supplier and agreed
to assist the police by conducting a controlled buy from him. That transaction took place
several days later. In the parking lot of an auto-parts store, while under continuous police
surveillance, Mr. Pingry bought a quarter-pound of “ice” (high-grade methamphetamine)
from Mr. Hinson for $3,250 in cash. The controlled buy eventually led to Mr. Hinson’s
arrest, and he was indicted under four counts pertaining to possession and distribution of
methamphetamine. See United States v. Hinson, 585 F.3d 1328, 1331–32 (10th Cir.
2009).2
At trial, the government put on “substantial evidence” showing that Mr. Hinson
was Mr. Pingry’s drug supplier. Id. at 1332. Mr. Pingry testified that he regularly
purchased methamphetamine from Mr. Hinson—“anywhere from a quarter pound to a
pound” several times a week. Id. The government corroborated Mr. Pingry’s testimony
with phone records showing a large number of calls between Mr. Pingry and Mr. Hinson
during the relevant time period and a large number of calls between Mr. Hinson and a
2 Specifically, Mr. Hinson was indicted for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and using telephones in facilitating the knowing and intentional distribution of methamphetamine in violation of 21 U.S.C. § 843(b).
-2- certain “Oscar,” Mr. Hinson’s alleged supplier. In addition, the evidence revealed that
Mr. Hinson possessed and transacted in large amounts of cash even though Internal
Revenue Service records showed that he had very little income. A final bit of evidence,
relevant to the instant matter, was testimony from Detective Hamilton that her
investigation of Mr. Hinson began when she heard from a different confidential informant
that a fellow by “the name of Kevin, white male, supplied Mac Pingry with
methamphetamine ice.” Id. (quoting Aplt. App. at 226) (internal quotation marks
omitted). The jury found Mr. Hinson guilty on all counts, and he was sentenced to 240
months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Id.
at 1341.
In March 2011, Mr. Hinson filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, claiming that his trial counsel was constitutionally
deficient. The district court denied the motion and also denied a COA. Mr. Hinson now
seeks a COA from this court, reasserting his ineffective-assistance claim.
II. Standard of Review
A COA is a jurisdictional prerequisite to our review of the merits of a § 2255
appeal. See 28 U.S.C. § 2253(c)(1)(B); Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012).
We will issue a COA “only if the [movant] has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the movant
must demonstrate that “reasonable jurists could debate whether . . . the [§ 2255 motion]
should have been resolved in a different manner or that the issues presented were
-3- adequate to deserve encouragement to proceed further.” United States v. Tony, 637 F.3d
1153, 1157 (10th Cir. 2011) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))
(internal quotation marks omitted). When, as here, the district court denies a motion on
the merits, the movant carries his burden by showing that “reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” United
States v. Bedford, 628 F.3d 1232, 1234 (10th Cir. 2010) (quoting Slack, 529 U.S. at 484)
(internal quotation marks omitted).
III. Discussion
Before the district court, Mr. Hinson asserted eight reasons why his trial counsel
rendered constitutionally ineffective assistance. In his COA application before us, Mr.
Hinson has winnowed those reasons down to five. He claims that counsel was ineffective
for (1) failing to obtain from the government various materials that would have allowed
him to impeach Mr. Pingry, (2) failing to impeach Mr. Pingry with the specific terms of
his plea agreement, (3) failing to object to misleading arguments by the government at
trial regarding favorable treatment of Mr. Pingry for his testimony, and (4) failing to
object to the admission of hearsay testimony at trial. Mr. Hinson also asserts (5) that the
cumulative effect of counsel’s failures prejudiced his defense.3
While the Sixth Amendment guarantees Mr. Hinson “the Assistance of Counsel for
3 Mr. Hinson has abandoned his arguments, urged below, that his attorney was ineffective for failing to move for a mistrial, Aplt. App. at 434 (Dist. Ct. Mem. & Order, filed Aug. 1, 2011), failing to obtain suppression of evidence seized from his truck, id. at 435, and failing to object to the sentence imposed, id. at 435–36.
-4- his defence,” U.S. Const. amend. VI—a right that secures not merely the presence of an
attorney but the “reasonably effective assistance” thereof, Strickland v. Washington, 466
U.S. 668, 687 (1984)—Mr. Hinson’s claim that counsel was ineffective faces a double
hurdle. He “must show both that his counsel’s performance ‘fell below an objective
standard of reasonableness,’ and that ‘the deficient performance prejudiced the defense.’”
Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland, 466 U.S. at
687–88). Failure to satisfy either prong is dispositive. Id.
We review counsel’s performance in light of “prevailing professional norms,”
United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) (quoting Strickland, 466
U.S. at 688) (internal quotation marks omitted), and our analysis is “highly deferential,”
Byrd, 645 F.3d at 1168 (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010))
(internal quotation marks omitted). We indulge a “‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,’ and that ‘the
challenged action might be considered sound trial strategy.’” Fairchild v. Workman, 579
F.3d 1134, 1140 (10th Cir. 2009) (quoting Strickland, 466 U.S. at 689). To be
constitutionally deficient, an attorney’s performance “must have been completely
unreasonable, not merely wrong.” Byrd, 645 F.3d at 1168 (quoting Hooks, 606 F.3d at
723) (internal quotation marks omitted).
Even if a defendant can carry his burden under the first prong of Strickland, he
must still show prejudice. Prejudice means “a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different.” Id. (quoting
-5- United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)) (internal quotation marks
omitted). “[M]ere speculation” does not suffice. Id. Counsel’s errors must be “so
serious” as to undermine our confidence in the trial’s outcome. See id. (quoting
Strickland, 466 U.S. at 687) (internal quotation marks omitted).
We are not persuaded that Mr. Hinson’s trial attorney was constitutionally
deficient, nor are we convinced that any alleged errors were prejudicial. We further
believe that these conclusions are not debatable among jurists of reason. We therefore
deny a COA.
A.
Mr. Hinson first claims that his attorney was ineffective for failing to obtain from
the government various materials that would have allowed him to impeach the testimony
of Mr. Pingry, the government’s key witness in the case. Specifically, he states that
counsel should have asked the court to order the government to produce (1) an interview
of Mr. Pingry recorded on November 10, 2005, (2) a police report relating to an interview
of Mr. Pingry on December 13, 2005, (3) Mr. Pingry’s informant agreement, and (4) Mr.
Pingry’s presentence report (“PSR”). Mr. Hinson tells us that these materials would have
provided “significant ammunition with which to impeach [Mr.] Pingry.” Aplt. Opening
Br. at 15. We are not persuaded.
Mr. Hinson’s attorney impeached Mr. Pingry’s testimony in a number of ways,
highlighting inconsistencies in Mr. Pingry’s statements, his prior lies to police, and his
bias due to the plea agreement he reached with the government in exchange for his
-6- testimony. See Aplt. App. at 620–53, 660–63 (Tr. Test. of Mac Pingry, held Nov. 28,
2007). As the district court found, Mr. Pingry’s credibility “was addressed fully by both
parties.” Id. at 432–33 (Dist. Ct. Mem. & Order, filed Aug. 1, 2011). We presume that
counsel’s decisions represented “sound trial strategy,” Fairchild, 579 F.3d at 1140
(quoting Strickland, 466 U.S. at 689) (internal quotation marks omitted), and Mr. Hinson
fails to overcome that presumption.
The November 10, 2005, interview of Mr. Pingry and the December 13, 2005,
report held little, if any, impeachment value. For example, Mr. Hinson points to
purported discrepancies between Mr. Pingry’s statements and testimony by Mr. Pingry
and others at trial. However, we have carefully reviewed the record, and it is not clear to
us that many of Mr. Pingry’s pre-trial statements reveal discrepancies with trial testimony
at all. Furthermore, to the extent that Mr. Pingry’s pre-trial statements could conceivably
be read as revealing such discrepancies, they are of a minor sort, and competent counsel
could have reasonably concluded—given the considerable impeachment to which Mr.
Pingry already was subjected—that employing these possible discrepancies would have
been cumulative and of no material effect. In particular, we note that Mr. Pingry’s
statements in his November interview are far from pellucid and, at best, would have
provided a very thin thread upon which to hang a line of cross-examination. For
example, contrary to Mr. Hinson’s assertions, we are hard-pressed to read Mr. Pingry’s
convoluted statements in the November interview as indicating that “he dealt with the
Mexican guys directly,” Aplt. Opening Br. at 27, which would have contradicted Mr.
-7- Pingry’s trial testimony that Mr. Hinson dealt with the Mexican drug suppliers.
Furthermore, Mr. Hinson fails to explain how the informant agreement could have
been used for impeachment purposes, speculating only that, had the agreement been
available, counsel might have shown that Mr. Pingry breached it. Finally, Mr. Hinson
argues that if counsel had requested Mr. Pingry’s PSR, he could have shown that Mr.
Pingry’s sale of 70 pounds of methamphetamine for Mr. Hinson had not been considered
relevant conduct for sentencing purposes—a fact presumably going to Mr. Pingry’s bias.
However, Mr. Pingry admitted on both direct and cross-examination that exclusion of the
sale was part of his plea agreement, see Aplt. App. at 661–62, and as the district court
pointed out, the plea agreement was admitted into evidence for the jury to reference, id. at
432. Counsel’s requesting the PSR for this purpose would have been unnecessary and
cumulative. We therefore cannot say that counsel’s performance “fell below an objective
standard of reasonableness.” Byrd, 645 F.3d at 1167 (quoting Strickland, 466 U.S. at
687–88).
B.
In a similar vein, Mr. Hinson claims that his attorney should have cross-examined
Mr. Pingry on the specific terms of his plea agreement with the government. Mr. Hinson
faults counsel for failing to “establish the specific charges that were dismissed as part of
[Mr.] Pingry’s plea agreement” and for failing to “establish the sentences [Mr.] Pingry
would have faced but for his plea agreement.” Aplt. Opening Br. at 20. However,
contrary to Mr. Hinson’s assertion, counsel explored the terms of the plea agreement in
-8- cross-examining Mr. Pingry. His questioning revealed that Mr. Pingry had been allowed
to plead to only two of the six counts on which he was originally charged, Aplt. App. at
662, and that Mr. Pingry’s sale of methamphetamine for Mr. Hinson would not be
considered for sentencing purposes, id. at 660–61. We afford attorneys a good deal of
leeway under the Strickland standard, see Worthington v. Roper, 631 F.3d 487, 503 (8th
Cir. 2011), and we are convinced that counsel’s performance was reasonable and
grounded in sound tactical decisionmaking. We refuse to second-guess it. See United
States v. Aptt, 354 F.3d 1269, 1284 (10th Cir. 2004).
C.
Mr. Hinson sees constitutional deficiency in his attorney’s failure to object to
allegedly misleading arguments by the government regarding favorable treatment of Mr.
Pingry for his testimony. At trial, the government called Mr. Pingry’s attorney to the
stand to establish that the government had neither promised to file, nor filed, a motion
under Rule 35 of the Federal Rules of Criminal Procedure for reduction of Mr. Pingry’s
sentence. Aplt. App. at 806–13 (Tr. Test. of Phillip White, held Nov. 29, 2007). Also, in
closing arguments, the government told the jury that there was no deal with Mr. Pingry,
and that while Mr. Pingry “hope[d]” for a sentence reduction in exchange for his
testimony, he was not guaranteed anything. Id. at 1044 (Gov’t’s Closing Arguments, held
Dec. 3, 2007). All of this was true. Mr. Hinson complains, however, that the day after
trial, the government “filed two motions under seal in [Mr.] Pingry’s case, and a short
time later, [Mr.] Pingry’s sentence of 63 months was reduced to time served.” Aplt.
-9- Opening Br. at 19.
This avails Mr. Hinson nothing. The government denied the existence of an
agreement with Mr. Pingry regarding sentence reduction, and there is nothing to call the
veracity of that representation into doubt. Moreover, as the district court found, the
government’s questions and statements at trial did not imply “that a Rule 35 motion
would never be filed on behalf of [Mr.] Pingry.” Aplt. App. at 431–32. Any objection by
trial counsel on these grounds would have been meritless and overruled, and counsel was
therefore not deficient for failing to object.
D.
Mr. Hinson faults his attorney for failing to object when the government elicited
hearsay testimony from Detective Hamilton. Detective Hamilton testified that a
confidential informant had told her that a person named “Kevin, white male, supplied
Mac Pingry with methamphetamine ice.” Aplt. App. at 666 (Tr. Test. of Det. Sara
Hamilton, held Nov. 28, 2007). Mr. Hinson’s counsel did not object to this testimony,
hearsay though it was.
On direct appeal, Mr. Hinson sought to have his conviction thrown out on the basis
of this testimony. Because no objection to it had been lodged, this court reviewed the
claim for plain error. We acknowledged that the detective’s statement was impermissible
hearsay and thus that its admission into evidence was erroneous. See Hinson, 585 F.3d at
1337. We concluded, however, that the error did not affect Mr. Hinson’s “substantial
rights” because he could not “show a reasonable probability that, but for the error
-10- claimed, the result of the proceeding would have been different.” Id. at 1338 (quoting
United States v. Portillo-Vega, 478 F.3d 1194, 1202 (10th Cir. 2007)) (internal quotation
marks omitted).
The substantial-rights prong of plain-error review is identical in form and
substance to the prejudice prong of Strickland, which requires a defendant to show “a
reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different.” Byrd, 645 F.3d at 1168 (quoting Challoner, 583 F.3d at 749)
(internal quotation marks omitted). As a result, our previous resolution of Mr. Hinson’s
claim on direct appeal controls the outcome here. Assuming arguendo that counsel was
deficient for failing to object to Detective Hamilton’s testimony, that deficiency was not
prejudicial. As we previously found:
We cannot say that the admission of Detective Hamilton’s hearsay testimony affected the outcome of Hinson’s trial. In addition to Hamilton’s statement that she had heard a man named Kevin was Pingry’s supplier, Pingry himself testified that Hinson was his supplier, and his testimony was corroborated by evidence produced during a controlled buy. It is unlikely that the officer’s additional statements on this issue had any serious impact on the outcome of the trial . . . .
Hinson, 585 F.3d at 1338.
E.
Lastly, Mr. Hinson alleges cumulative error, arguing that counsel’s errors in the
aggregate prejudiced his defense, even if no single error in isolation did so. This
argument fails as a matter of law. As the term “cumulative” suggests, “[c]umulative-error
analysis applies where there are two or more actual errors. It does not apply . . . to the
-11- cumulative effect of non-errors.” Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999)
(quoting Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998)) (internal quotation marks
omitted). Thus, we undertake a cumulative-error analysis only if there are at least two
errors. See United States v. Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009). Here,
Mr. Hinson has established, at most, one error (i.e., counsel’s failure to object to the
admission of hearsay). Thus, we must “refrain from engaging in a cumulative error
analysis.” Id.
IV. Conclusion
We conclude that Mr. Hinson’s claims of ineffective assistance of counsel fail.
Thus, we are confident that reasonable jurists would agree with the district court’s
decision to reject them. Accordingly, we conclude that Mr. Hinson is not entitled to relief
under 28 U.S.C. § 2255. We therefore DENY Mr. Hinson a COA and DISMISS this
matter.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge
-12-