* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 12 2004 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GARY JACK HOLLIS, JR., Defendant-Appellant. No. 02-3341 (D.C. Nos. 01-CV-3103-JAR and 98-CR-40024-02-JAR) (D. Kan.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, and ANDERSON , and BRORBY, Senior Circuit Judges.
In this action pursuant to 28 U.S.C. § 2255, a Cert ificate of Appealability (COA) was granted as to the following issues: 1) Whether Mr. Hollis received ineffective assistan ce of trial counsel a) based on his counsel’s failure to allow him to t estify or to advise him that the decision to testify was exclusi vely his decision, or1 We deny COA as to all the other issues Mr. Hollis r aises because we

conclude he has not “made a substantial showing of the denial of a constitutional right” as to any of them. 28 U.S.C. § 2253(c)(2). -2- b) based upon his counsel’s failure to call co-defe ndant, Wayne Getman, as a trial witness; 2) Whether the Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000), renders Mr. Hollis’ convictionunconstitutional and whether that issue is procedurally barred; 3) Whether Mr. Hollis’ challenge to the drug quanti ty was procedurally barred and, if so, whether counsel was ineffective for failing to raise it. Having reviewed these issues in light of the entire record, we affirm. 1 After a jury trial, Mr. Hollis was found guilty of one count of conspiracy to manufacture methamphetamine in violation of 21 U.S. C. § 846, and two counts of manufacturing methamphetamine in violation of 21 U. S.C. § 841(a)(1). The court sentenced Mr. Hollis to 262 months on counts one, s ix, and eight, to be served concurrently. This court affirmed his conviction. See United States v. Hollis , 99-3233, 2000 WL 235250 (10th Cir. Mar. 2, 2000). Mr. Hollis now contends he received ineffective ass istance of counsel because his attorney refused to allow him to testif y. Under the familiar two-prong analysis of Strickland v. Washington , 466 U.S. 668 (1984), Mr. Hollis has the burden of proving his counsel’s representation fell below an objective standard of reasonableness and the deficiency prejudiced his de fense. Id. at 687-88. He must-3-

also overcome the strong presumption that counsel’s decisions “might be considered sound trial strategy.” Id. at 689 (quotation omitted). If Mr. Hollis’ counsel actually overrode his desire to testify, his counsel’s conduct fell below an objective standard of reasonableness and would satisfy the first prong of Strickland

. See United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (“Where the defendant claims a violation of his right to testify by defense counsel, the essence of the claim is that t he action or inaction of the attorney deprived the defendant of the ability to c hoose whether or not to testify in his own behalf. In other words, by not protecti ng defendant’s right to testify, defense counsel’s performance fell below the consti tutional minimum, thereby violating the first prong of the Strickland test.”). Even if counsel overrode his desire to testify, however, Mr. Hollis must show pr ejudice, which is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Mr. Hollis asserts via affidavit that he was prepar ed to admit the charges of manufacturing methamphetamine in counts six and eig ht in hopes of getting the jury to believe that he was innocent of the charge of conspiracy to manufacture methamphetamine in count one. The district court n oted there was an overwhelming amount of evidence against Mr. Hollis on counts six and eight. Even had he testified that he was innocent as to co unt one and the jury had-4-

acquitted him of that count, he would still be serv ing concurrent sentences of 262 months on each of counts six and eight, so the outc ome of his trial with regard to sentence would not have changed. Moreover, had the jury acquitted Mr. Hollis on count one, the court could still have used the rele vant conduct pertaining to count one to sentence him. See United States v. Watts , 519 U.S. 148, 157 (1997) (holding that conduct underlying charges for which defendant has been acquitted may be relied on at sentencing if it has been prove d by a preponderance of the evidence). We thus conclude that Mr. Hollis has fa iled to show he was prejudiced by his counsel’s performance. We also reject Mr. Hollis’s claim that his counsel was ineffective for failing to call his co-defendant, Mr. Getman, as a trial witness. Mr. Getman’s trial was pending at the time of Mr. Hollis’s trial . Although Mr. Getman now asserts in his affidavit he would have testified infavor of Mr. Hollis had he been called, we agree with the government that it is obj ectively unreasonable to believe a co-defendant would admit his guilt in the very co nspiracy for which he was charged in order to absolve his co-defendant, rathe r than invoking his rights under the Fifth Amendment. See United States v. Castorena-Jaime , 285 F.3d 916, 931 (10th Cir. 2001). In any event, as Mr. Getman admi ts in his affidavit, he implicated Mr. Hollis in his plea agreement with th e government, a fact of which the district court was aware when it denied Mr. Hol lis’ habeas petition.-5-

Mr. Hollis’ claim that he was sentenced in contrave ntion of the rules announced in Apprendiis procedurally barred. He failed to raise an Apprendi claim on direct appeal and he has not shown cause f or that failure. Even assuming counsel was constitutionally deficient forfailing to raise Apprendi either on direct appeal or in the petition for cert iorari, Mr. Hollis has not shown he was thereby prejudiced. Had Mr. Hollis’ counsel raised an Apprendiclaim, the outcome would have remained the same: the court wou ld have been required to run his sentences consecutively to the extent neces sary to satisfy the minimum guideline amount of 262 months. U.S. Sentencing Gu idelines Manual § 5G1.2(d); see also United States v. Price , 265 F.3d 1097, 1108-09 (10th Cir. 2001). Finally, Mr. Hollis’ claims the district court erre d in determining the drug quantity attributable to him has been procedurally defaulted. Nor are we persuaded his counsel was ineffective for failing t o raise this issue; Mr. Hollis suffered no prejudice because his sentence would no t have been affected. See United States v. Hollis , 191 F. Supp. 2d 1257, 1267 & n.6 (D. Kan. 2002) For the foregoing reasons, we AFFIRM

.
ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge