UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KAREN MICHELLE COX, Defendant - Appellant. No. 19-8000 (D.C. Nos. 2:18-CV-00048-ABJ & 2:15-CR-00180-ABJ-1) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before LUCERO , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Karen Cox, a federal prisoner proceeding pro se , 1 seeks a certificate of appealability (COA) to appeal the district court’s denial of he r 28 U.S.C. § 2255 petition. We conclude that reasonable jurist s could not debate that the d istrict court erred when it denied Cox’s § 2255 petition . Thus, we deny Cox a COA.
BACKGROUND In 2016, a jury convicted Cox o f Conspiracy to Distribute 50 Gr ams or More of Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)( A) and 846. The district

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collatera l estoppel. It may be cited, h owever, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32. 1.

1 We liberally construe the pleadings of pro se litigants. United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

### August 2, 2019
Elisabeth A. Shumaker Clerk of Court2 court sentenced Cox to 121 months ’ imprisonment followed by fiv e years’ supervised release. Cox appealed her sente nce on June 17, 2016, and we af firmed. United States v.
Cox , 684 F. App’x 706 (10th Cir. 2017). In 2018, Cox filed a § 2255 pe tition in the district court requ esting that her sentence be vacated. As grounds, s he claimed that both her tri al and appellate counsel were ineffective. The district court denied he r petition and d enied her a COA. Cox now seeks a COA from this court.
DISCUSSION A COA is a jurisdictional prerequisite for appellate review of a denial of a § 2255 petition. United States v. Parker , 720 F.3d 781, 785 (10th Cir. 2013). To obtain a COA, a petitioner must make “a substan tial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This sta ndard requires that a petitioner “demonstrate that reasonable jurists would find the district court’s assessment of the const itutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Cox seeks a COA to appeal wheth er her trial and appellate couns el were ineffective. 2 To prove an ineffective assistance of counsel claim, Cox mustshow two

2 In addition to her ineffective assistance of counsel claims, C ox gives two other reasons why she believes th e district court erred in deny ing her § 2255 petition. First, she claims that, were he r sentence to be reduced beneath the mandatory minimum under the “safety valv e” provision (18 U.S.C. § 3553(f) ), she would also be eligible for a further reducti on under Amendment 794. We agree with the district court’s holding that it lacked jur isdiction to reduce her sente nce under § 3553(f) in a § 2255 petition. See United States v. Addonizio , 442 U.S. 178, 185 (1979). Second, Cox seeks to appeal the d enial of her motion to strike the government’s response to her § 2 255 petition for being overlong in violation of District of Wyoming Local Rule 7.1(b)(2)(B). The district cour t has complete3 things. First, she must show tha t counsel’s performance was def icient, meaning that it fell “below an objective standard of reasonableness.” Strickland v. Washington , 466 U.S. 668, 688 (1984). Second, Cox must demonstrate that counsel’s de ficient performance prejudiced her, which requires he r to show “a reasonable probab ility that, but for counsel’s unprofessional errors , the result of the proceeding w ould have been different . . . a probability sufficient to u ndermine confidence in the o utcome.” Id. at 694. A failure to demonstrate either deficiency or prejudice is fata l to an ineffective assistance of counsel claim. Id. at 700.
I. Ineffective Assistance of Trial Counsel Cox attacks the performance of he r trial counsel on multiple fr onts. She alleges that her counsel was ineffective throughout pre-trial proceedin gs, during trial, and at sentencing. We consider these a rguments in full and, ultimately , hold that no reasonable jurist would argue that Cox i s entitled to relief on any of the se claims. Cox first claims that her attorn ey was ineffective because he f ailed to advise her of the possible benefits of pleadin g guilty. A defendant claiming that his attorney’s advice was deficient in this regard m ust point to particular failings in that advice. See United States v. Robles , 546 F. App’x 751, 753 (10th Cir. 2013). Cox fails to allege any specific deficiency in the advice her atto rney gave her concerning the b enefits of accepting a plea.

discretion to grant or deny a motion to strike for length. See Baum v. Great Western Cities, Inc., of New Mexico , 703 F.2d 1197, 1212 (10th Ci r. 1983) (“A trial court’s denial of motions or objections to rulings will not be disturbe d on appeal unless it affirmatively appears that the t rial court abused its discretio n.”). We do not identify an abuse of that di scretion here.4 Nor does Cox identify what advic e she should have received. Ac cordingly, no reasonable jurist would debate t he merits of Cox’s claim. Second, Cox argues that her tri al counsel was ineffective for f ailing to negotiate a plea with the prosecutor. But Cox acknowledges that her attorn ey conveyed to her a plea offer extended by the government for eight years’ imprisonment. Cox refused this deal, claiming factual innocence regarding the dates charged in the i ndictment. The existence of this offer, secured by counsel and conveyed to the client, m akes it clear that Cox’s trial attorney did negotiate a plea deal, contrary to Cox’s claim. Cox also claims that on the eve of trial the government present ed her counsel with a second plea offer, which counsel never relayed to her. She a rgues her counsel was ineffective for failing to infor m her of this offer. Defense c ounsel’s failure to communicate a second formal deal to the defendant would constit ute deficient performance. Missouri v. Frye , 566 U.S. 134, 145 (2012). But Cox later states that she
had received the second offer, and reje cted it because “she had al ready made up her mind to proceed to trial . . . .” Reply to United States’ Resp. to Def.’s Mot. Under 28 U.S.C. § 2255 at 3. Taking Cox’s alle gations as true, these factual i nconsistencies foreclose any reasonable argument that she i s entitled to relief on her claimof deficient performance by trial counsel at the pleading stage. Cox next claims trial counsel was ineffective for failing to in vestigate her case. Cox claims that her attorney fa iled to follow the leads she pro vided, failed to request GPS data related to two government i nformants, and did not hire a p rivate investigator.5 Assuming without deciding that C ox’s counsel was deficient in t his regard, we fail to see how Cox was prejudiced by any such deficiency. To establish prejudice, Cox mus t demonstrate that any addition al investigation would have uncovered exculpator y evidence, and she must show th at this evidence would have impacted the outcome of her trial. Hatch v. Oklahoma , 58 F.3d 1447, 1457 (10th Cir. 1995), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10th Cir. 2001) (en banc). M ere speculation that additio nal investigation might have discovered exculpatory evidence is insufficient. United States v. Clark , 596 F. App’x 696, 701 (10th Cir. 2014). Aside from the speculative asse rtion that additional investigat ion could have exonerated her, Cox fails to deta il what evidence she believes any additional investigation would have unearth ed, or to explain how such evid ence would have impacted her trial. The closest Cox comes is her suggestion th at following up on her leads might have provided alibis for the dates charged in the i ndictment. But Cox does not explain how these leads could have possibly established an alibi sufficient to defend against a charge of a conspir acy spanning nearly fifteen months . Accordingly, Cox fails to demonstrate that she was pr ejudiced by any potentially defic ient failure to investigate. Cox also claims that her counsel was ineffective throughout tri al. Specifically, Cox claims that her counsel failed to call alibi witnesses and failed to effectively crossexamine government witnesses. 3 For these claims, Cox must assert with particularity

3 Cox also alleges that her attor ney failed to keep her apprised of his overall trial strategy. Tactic al decisions at tria l are a matter for c ounsel’s discretion, and we6 what evidence would have been e licited if her counsel had calle d the additional witnesses or conducted the additiona l cross-examination. See Pickens v. Gibson , 206 F.3d 988, 1003 (10th Cir. 2000). When evalua ting her attorney’s trial st rategy, we apply a “presumption that counsel’s cond uct [fell] within the wide rang e of reasonable professional assistance . . . the p resumption that, under the c ircumstances, the challenged action ‘might be consideredsound trial strategy.’” Strickland at 689. It is the petitioner’s burden to “show[] that counsel’s action or inaction was not bas ed on a valid strategic choice.” Bullock v. Carver , 297 F.3d 1036, 1047 (10th Cir. 2002) (quoting Wayne R. LaFave et al., Criminal Procedure § 11.10(c) at 715 (West 2d 1999)). It is inarguable that Cox fails to meet this sta ndard. Cox does not detail what evidence any additional witnesses would have provided , and she also fails to explain ho w additional crossexamination would ha ve worked in her favor. Thus, she has faile d to demonstrate deficient performance. Finally, Cox challenges her trial counsel’s conduct at sentenci ng. Cox claims that her attorney’s failure to object t o certain facts laid out in t he presentence investigation report (PSR) and his failure to e xplain to her the PSR and the guideline range for her sentence constitutes deficient performance. But the record sho ws that, at her counsel’s

apply a heavy measure of defer ence to counsel’s judgments. Newmiller v. Raemisch , 877 F.3d 1178, 1198 ( 10th Cir. 2017). To es tablish ineffective ness on the grounds of failure to communicate, a defenda nt must demonstrate “a complet e breakdown in communication” between h er and her attorney. United States v. Rhodes , 157 F. App’x 84, 87 (10th Cir. 2005) (quoting United States v. Soto Hernandez , 849 F.2d 1325, 1328 (10th Cir. 1988)). C ox has not alleged that there w as such a complete breakdown and has therefore not m ade a substantial showing of i neffectiveness for failure to keep her apprised.7 request, the sentencing court re cessed so that counsel could ex plain the PSR to her. When asked by the judge if she h ad reviewed and understood the PSR, she answered in the affirmative. Accordingly, C ox’s claim of deficient perform ance at sentencing must fail. In sum, Cox fails to make a substa ntial showing that her counse l was ineffective, such that reasonable jurists coul d debate the district court’s denial of relief. We therefore hold that Cox is not entitled to a COA to appeal the district c ourt’s decision regarding ineffective assistance by trial counsel.
II. Ineffective Assistance of Appellate Counsel Cox also claims that her appella te counsel was ineffective. Sh e makes two claims in that regard. First, Cox argues that her appellate counsel d id not communicate with her or allow her to participate mean ingfully in her appeal. To be sure, an attorney has a duty to communicate with h is or her client. But Cox offers no speci fics about how much or little she and her appellate counsel communicated. Nor does Co x explain how counsel’s failure to communicate during the appeal process fell “outside the wide range of professionally competent assistance.” Strickland , 466 U.S. at 691. Further, she fails to identify how her active particip ation in appellate counsel’s br iefing of the case would have changed the outcome of her appeal. Id. at 694. Though we will liberally construe a

pro se litigant’s brief, we cannot act as their advocate or fashion t heir arguments for them. United States v. Pinson , 584 F.3d 972, 9 75 (10th Cir. 2009). Thus, without any explanation of her claim that appellate counsel’s lack of commu nication with her was8 deficient or how it actually pre judiced her appeal to this Court, we cannot discern a substantial showing of the denial of a constitutional right. Cox’s second argument regarding ineffective assistance by her appellate counsel centers on the issue he chose to raise on appeal. The sole iss ue on Cox’s direct appeal related to Federal Rule of Evide nce 403, specifically, that the trial judge erred by admitting cumulative and unfairly prejudicial evi dence of metha mphetamine sales that occurred before the dat es charged in the indictment, but which the court found intrinsic to the charged conspiracy. United States v. Cox , 684 F. App’x 706 ( 10th Cir. 2017). Cox argues that her appellate counsel should instead have raised tw o other arguments: (1) that the prior methamphetamine sales w ere not intrinsic to the charg ed conspiracy, and (2) that the trial judge erred in den ying her a sentence departure under the “safety valve” provision of 18 U.S.C. § 3553(f). When considering an ineffective assistance of appellate counsel claim for failure to raise an issue on appeal, we lo ok to the merits of the omitt ed issues. Hooks v. Ward , 184 F.3d 1206, 1221 (10th Cir. 1999). Appe llate counsel’s cons titutional performance is judged by the same deficient and prejudicial standard as at tri al. Id. Cox therefore must show deficiency (that her attorn ey’s choice not to raise an iss ue was unreasonable, because it was obvious from the tr ial record) and prejudice (a reasonable probability that either of her proposed arguments w ould have led to a different outcome). Barnett v. Hargett , 174 F.3d 1128, 1135 (10th Ci r. 1999). In other w ords, Cox mu st show that it was objectively unreasonable to h ave raised the Rule 403 issue over other potential9 arguments, and that but for couns el’s choice there was a reason able probability that she would have prevailed on appeal. Bush v. Carpenter , 926 F.3d 644, 684 (10th Cir. 2019). Other than insisting that counsel should have challenged findin gs that the admitted testimony was intrinsic to the c onspiracy, Cox does not outline how the outcome would have differed had counsel pursu ed that argument. At trial, Cox ’s counsel objected to testimony (relating to methamphe tamine sales predating the date s listed on the indictment by several months) as violating Federal Rule of Evidence 404(b) ’s prohibition of evidence of prior crime s or bad acts. The trial judge overruled this objection, holding that the earlier sales were “inextri cably intertwined with the consp iracy.” United States v.
Cox , 684 F. App’x at 707 (quoting to the record at trial). Trial counsel conceded that the testimony may have been admissibl e, even if not intrinsic to th e charged conspiracy, as Fed. R. Evid. 404(b)(2) evidence of a common plan or design. Id. Because trial counsel conceded that the evidence c ould be admitted for limited purpos es even if found to be extrinsic to the charged conspir acy, there would be nothing to gain by arguing on appeal that the testimony was improperl y admitted as “inextricably int ertwined.” See United States v. Jackson , 88 F.3d 845, 847 (10th Cir. 1996 ) (“So long as the evidence i s admissible under some legally co rrect theory, no error occurred .”) Reasonable jurists could not debate that appellate counsel was deficient for faili ng to argue for the testimony’s inadmissibility under one theory, when it had been conceded at trial that it would be admissible under anothe r theory. There has not been, therefore, a substantial showing of appellate counsel’s d eficient performance regarding this first proposed issue.10 Cox also claims that her appella te counsel should have raised t hat the District Court erred in denying Cox’s se ntence departure under the “safe ty valve” provision. For Cox to have qualified for the saf ety valve, she would have need ed to have convinced the sentencing judge that she had “tr uthfully provided to the government all information and evidence” she had regarding the conspiracy. 18 U.S.C. § 3553(f )(5). Cox claimed to have fulfilled this element based on a single conversation with Wyoming investigators which took place before criminal charges were brought. The tri al court did not accept her claim. Cox claims that the court denied her safety valve departure because she initially pleaded not guilty. The record i ndicates, however, that the co urt based its decision on inconsistencies between what she told the investigators and wha t was proven at trial. Accordingly, Cox’s appellate couns el would not have had a reaso nable probability of success had he chosen to raise this issue on appeal.
CONCLUSION For the reasons stated above, w e deny Cox’s application for a COA and dismiss this appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge