UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ROBERT LEE NICK, Defendant - Appellant. No. 11-2207 (D.C. No. 1:11-CV -00217-MCA-KBM) (D. N.M.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY

Before MURPHY , EBEL and HARTZ , Circuit Judges.

Defendant-Appellant Robert Nick seek s a certificate of appealability (“COA”), 28 US.C. § 2253(c), so he can appeal the de nial of 28 U.S.C. § 2255 relief from his conviction for possessing marijuan a with the intent to dist ribute it. We deny COA. COA is warranted only “if the applican t has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The ap plicant makes this showing if “reasonable jurists could debate wh ether (or, for that ma tter, agree that) the [§ 2255 motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encour agement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quot ation marks omitted). Nick’s conviction stemmed from a safety inspector discoveri ng 550 pounds of FILED United States Court of Appeals Tenth Circuit 

### July 26, 2012

Elisabeth A. Shumaker Clerk of Court2 marijuana secreted in a load of celery in a trailer Nick was ha uling. In his § 2255 motion, Nick challenges defense counsel’s failure to get into evidence keys other company drivers had to Nick’s trailer, evidence that the defense did no t acquire until after it rested its case. Nick specifically s eeks COA on the four grounds he raised in his 28 U.S.C. § 2255 motion: his trial attorney was ineffec tive 1) in failing to object to the district court’s delay in ruli ng on Nick’s motion to reopen the evidence to adm it the keys until after the jury began its deliberations; 2) in failing to object to the prosecutor’s misrepresentations during closing argument that only Nick had a key to the trailer he was hauling; 3) in failing to inve stigate, find and present exculp atory evidence that others in the company also had keys to Nick’s tra iler; and 4) in providing overall deficient representation throughout Nick’s trial. Nick will be entitled to § 2255 relief on thes e claims only if he can show both that his attorney’s performance was constitutionally ineffective and that counsel’s ineffective representation prejudiced Nick’s defense. See Strickland v. Wash ington, 466 U.S. 668, 687 (1984). To establish prejudice, Nick must show that, but for counsel’s errors, there is a reasonable probability the jury would have acquitted him of possessing the marijuana found in the trailer. See id. at 694. But, ev en if defense counsel had succeeded in getting

into evidence the fact that ot hers in the company had keys to Nick’s trailer, there is no reasonable probability th e jury would have acquitted Nick of possessing the marijuana.

When the safety insp ector discovered the marijuana, Nick owned the trucking3 company to which the trailer be longed, he was driving the rig hauling the trailer, and he had a key to the padlock on the trailer. Further, the circumstan ces surrounding Nick’s driving the trailer were suspicious. He was using a driver’s license with his photo, but with another driver’s name, and there we re discrepancies in Nick’s logbook. The defense did present evidence that ot her company drivers had keys to the trailer Nick was hauling. Nick’s estrange d wife, Yvette Santifer, who was also his partner in the trucking business, testified that all of the company’s drivers had keys to the trailer in question. Santifer went on to tell ju rors that proof that others also had keys to the trailer, in the form of those other keys, would be sent to her via overnight shipping and then presented during trial the next day. That did not occur, however. The defense, instead, rested without seeki ng to admit the keys and the Government presented it during closing argument, arguing several times that the only key submitted at trial that fit the trailer’s padlock was the one Nick had with him. After the Government’s closing argument, defense counsel informed the trial cour t that he had just received the keys in an overnighted package. Defense counsel, therefore, moved to re open the evidence to admit those keys. The Court would no t let counsel present the keys to the jury, bu t instead told

defense counsel that he could raise this newl y-acquired evidence in a post-trial motion if

need be. Defense counsel then made his closing argument. Thereafter, the jury convicted Nick of possessing the marijuana fo und in the trailer, with the intent to distribute it, but acquitted him of c onspiring with others to do so.

All of Nick’s current ineffective-assi stance claims ultimately center on defense4 counsel’s inability to ge t the keys into eviden ce for the jury’s cons ideration. But Nick cannot establish that, had jurors been able to consider thos e keys, jurors would not have convicted Nick of possessing th e marijuana found in the tra iler. The defense presented other evidence to the jury indicating that othe rs in the company besides Nick had keys to the trailer Nick was hauling. See O’Neal v. Province, 415 Fed. App’x 921, 925 (10th Cir.) (concluding defe nse counsel’s failure to present cumulative alibi ev idence did not prejudice the defendant) (unpublished), cert. denied, 132 S. Ct. 210 (2011). But Nick

fails to assert additional evid ence indicating those others with keys had the means and opportunity to hide the mar ijuana in Nick’s trailer. A nd, in any event, there was sufficient evidence presented to the jury of Nick’s suspicious behavior from which jurors could have found that, even though others also had keys to Nick’s trailer, he was knowingly transporting the hidden marijuana. See Garcia v. Hart ley, 368 Fed. App’x 915, 916-17 (10th Cir. 2010) (unpublished) (considering strength of evidence presented against the defendant in deciding whether he had failed to establish prejudice resulting from counsel’s errors). For these reasons, then, Nick ha s failed to establish that reasonable jurists could disagree about whet her defense counsel’s purported errors prejudiced Nick’s defense. See Strickland, 4 66 U.S. at 697 (noting a court can reject an ineffective-assistance claim on either prong of St rickland’s two-part inquiry). He is, thus, not entitled to a COA on any of his § 2255 clai ms. See Slack, 529 U.S. at 484 (internal quotation marks omitted). We, therefore, deny COA and dismiss this appeal. We GRANT Nick’s motion to5 proceed on appeal in forma pauperis.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge