UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ERIC MADRID, Defendant - Appellant. No. 15-2075 (D.C. Nos. 1:11-CV-01135-LH-KBM and 1:08-CR-00683-LH-1) (D.N.M.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before KELLY , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ Eric Madrid seeks a certificate of app ealability (“COA”) to appeal the district court’s denial of his 28 U. S.C. § 2255 habeas motion. We deny a COA and dismiss the appeal.
I During an investigatory stop, officers discovered a rifle in the back seat of a vehicle Madrid was driving. After the st op, Madrid moved to suppress evidence of the rifle. The district court denied his motion to suppress. Subsequently, Madrid pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 12, 2015
Elisabeth A. Shumaker Clerk of Court-2- § 922(g)(1). Madrid now alleges that his trial counsel was ine ffective for failing to further impeach the o fficers during the suppression hearing. Although we thoroughly recounted the facts underlying Madrid’s case in his direct appeal, United States v. Madrid, 713 F.3d 1251, 1254-55 ( 10th Cir. 2013), we provide further detail about the suppression hear ing to clarify the ba sis of the case at bar. Madrid argued that probable cause to search his vehicle was absent because Officer Darrell Sanchez, who discovered the rifle, did so only after Lieutenant Chris Stoyell detained Madrid for twenty minutes outside the vehicle. At the suppression hearing, Stoyell test ified that he arrived at the apartment complex about a minute after being disp atched, stopped the vehicle Madrid was driving, pointed a spotlight at its driver-side window, and then awaited backup. According to Stoyell, Sanchez arrived a minute or two later. The pair of officers approached the vehicle and made contact with Madrid. Stoyell testified that while he conversed with Madrid at the driver-sid e window, Sanchez observed a rifle case in the back seat through the pass enger-side window. At that point, Stoyell averred, he asked Madrid to exit the ve hicle and handcuffed him. Sanchez similarly testified that he arrived at the apartment complex a few minutes after being dispatched, and that by the time he arrived, Stoyell had already stopped Madrid. According to Sanchez’s te stimony, while Stoyell talked to Madrid on the driver side of the vehicle, Sanchez approached the passenger side. There, he observed a rifle case in the back seat and informed Stoyell about it, which prompted Stoyell to order Madrid to exit the vehicle.-3- Madrid described a different sequence of events. He testified that immediately after he was stopped, Stoyell approached the vehicle, ordered Madrid to exit, handcuffed him, forced him to remove his sh irt, and told him to sit on a curb some distance away from the vehicle. Acco rding to Madrid, Stoyell questioned him outside of the vehicle for about twenty mi nutes before Sanchez arrived and noticed the rifle case in the back seat. At the suppression hearing, Madrid’s tr ial counsel, Cliff Mc Intyre, attempted to impeach Stoyell and Sanchez based on di screpancies between their testimony and a dispatch log. The log revealed that Stoyell was dispatched at 7:55 p.m. and Sanchez was dispatched one minute later. According to the log, Stoyell reported he was “on scene” two minutes later, at 7:57 p.m. But Sanchez did not report he was “on scene” until more than twenty minutes later, at 8:20 p.m. On direct examination, Sanchez explaine d that he forgot to report “on-scene” when he initially arrived becau se he was concerned about officer safety. McIntyre questioned Sanchez about this explanation on cross-examin ation, asking him how his failure to report could be reconciled with the ability of every other officer, who presumably faced similar concerns, to nonetheless report “on-scene” in a timely fashion. During his cross-examination of Stoyell, McIntyre further probed into the discrepancy between Stoyell’s claims regarding when Sanc hez arrived and the timing indicated by the dispatch log. Stoyell also admitted, unde r McIntyre’s questioning, that it was “possible” that he asked Madrid to exit his vehi cle before Sanchez arrived. However, Stoyell remained adamant that he recalled Sanchez arriving and pointing-4- out the rifle case before Madrid was asked to leave his vehicle. Additionally, McIntyre cross-examined th e police dispatcher, and e licited a concession from her that the dispatch log indicated that Sanchez did not arrive on the scene until 8:20 p.m. McIntyre confronted both Stoyell and Sanchez with an inconsistency between their testimony and what they told McInty re’s investigator, LeRoy Sandoval, during an earlier interview. While confronting Stoyell with the inconsistency, McIntyre stated: “when you talked to my investigator, and I’ve got th e tape here if I need to refresh your recollection, you told my i nvestigator you weren’t around the vehicle when the weapon was discovered. You were away from the vehicle talking to Mr. Madrid.” However, McIntyre did not attempt to introduce the tape recording into the record, play the relevant excerpt to the court, introduce a copy of Sandoval’s memorandum documenting the interview, or call Sandoval as a witness. Some of McIntyre’s imp eachment tactics were less successful. He convinced the district court to listen to a disp atch tape, which he claimed included a conversation between Stoyell and Sanchez th at proved Sanchez did not arrive onscene immediately. However, when the district court listen ed to the tape, it heard no such conversation. Rather, it found that the tape contained evidence corroborating the testimony of Stoyell and Sa nchez, specifically that afte r dispatch requested that Sanchez investigate a reported prowler, St oyell overrode the request because Sanchez was otherwise occupied. After the suppression hearing, the distri ct court found that Stoyell and Sanchez were credible, and that Madrid was not. It found that the officers’ version of events-5- was correct, and discounted the allegedly c ontrary evidence from the dispatch log. It found that Sanchez’s explan ation that he simply forgot to immediately report onscene was corroborated by Stoye ll overriding the request to have Sanchez respond to the reported prowler, “indicating that Offi cer Sanchez was indeed on scene with Lt. Stoyell.” Accordingly, the district court denied the motion to suppress. We affirmed. Madrid, 713 F.3d at 1262. After Madrid filed the amended § 2255 motion now at issue, his new counsel deposed both McIntyre and Sandoval and su bpoenaed their records. Neither had possession of the tape and both had de stroyed their records. A memorandum Sandoval drafted for McIntyre summarized an interview in which Stoyell provided a version of events that aligned with Madr id’s testimony at the suppression hearing. The district court denied the § 2255 clai m, Madrid’s request for an evidentiary hearing, and a COA. Madrid timely appealed.
II Madrid may not appeal the denial of § 2255 relief without a COA. 28 U.S.C. § 2253(c)(1)(B). We will issu e a COA “only if the appli cant has made a substantial showing of the denial of a c onstitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, Madrid must demonstrate “t hat reasonable jurists could debate whether (or, for that matter, agree that) the petition should have b een 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) (quota tion omitted).-6- A A petitioner claiming ineffective assistan ce of counsel must establish “that counsel made errors so serious that c ounsel was not functi oning as the ‘counsel’ guaranteed the defendant by the Sixth Am endment” and that “the deficient performance prejudiced the defense.” Stri ckland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudi ce, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessi onal errors, the resu lt of the proceeding would have been different.” Id. at 694. “The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionm aker . . . .” Id. at 695. “In making this determination, a court heari ng an ineffectiveness claim mu st consider the totality of the evidence before the judge or jury.” Id. On appeal, Madrid argues that McIn tyre rendered ineffe ctive assistance because he failed to cross-examine Stoyell in greater detail or to introduce evidence of Sandoval’s interview to impeach Stoye ll and Sanchez. A ssuming arguendo that McIntyre’s inactions constituted defici ent performance under the first prong of Strickland, we nevertheless conclude that Madrid was not prejudiced by McIntyre’s inactions. McIntyre made strong argumen ts about the discrepancy between the officers’ account of events and the timeli ne indicated by the di spatch log. He extensively cross-examined Stoy ell, Sanchez, and the dispat cher. It is unclear what purpose additional cross-examination of St oyell would have served, as McIntyre had-7- already elicited a concession from Stoyell that it was “ possible” that Madrid was removed from the vehicle before Sanchez saw the rifle case. Moreover, McIntyre confronted both Stoyell and Sanchez with the discrepa ncy between their testimony and the account that Stoyell provided to Sa ndoval during the interview. We see no reason why listening to, or reading an account of, Sandoval’s inte rview with Stoyell, rather than hearing McIntyre recount the interview, woul d have caused the court to reach a different decision. After reading the parties’ briefs, hearing testimony, and listening to the dispatch tape and log, the district court found the officers to be credible. It found that the dispatch tape corr oborated officer testimony that Sanchez forgot to report onscene immediately. Madrid has not shown “a reasonable probability that . . . the result of the proceeding would have been different” but for inaction by McIntyre. Id. at 694.
B Madrid further argues that the dist rict court erred by failing to hold an evidentiary hearing. We review a district court’s denial of an evidentiary hearing for abuse of discretion. United States v. Ha rms, 371 F.3d 1208, 1210 (10th Cir. 2004). A district court need not hold an evidentiary hearing if “the case record conclusively shows the prisoner is entitled to no relief.” United Stat es v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). The district court granted several of Madrid’s discovery requests during the § 2255 proceeding. Madrid had the opportunity to depose both McIntyre and-8- Sanchez. He subpoenaed them to obtain a ny records they had failed to turn over. That discovery revealed that neither had possession of the tape, and that both had destroyed their records. It is therefore unclear what evidence missing fro m the record could be elicited during an evidentiary heari ng. Madrid specifically contends that a hearing is necessary to dem onstrate the accuracy of th e information that Sandoval gave to McIntyre, particular ly in light of the government ’s suggestion that McIntyre may have been “bluffing” abou t the existence of the tape . But both McIntyre and Sandoval already testified in their depositions about the existence of the tape. And the accuracy of the information Sandoval ga ve to McIntyre can be verified through the memorandum Sandoval wrote for McInty re, which is already in the record. Accordingly, the district court did not abuse its discretion by denying Madrid’s motion for an evidentia ry hearing because the existing r ecord shows conclusively that Madrid is not entitled to relief . See Marr, 856 F.2d at 1472.
III For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge