* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-50459

USDC No. W-98-CV-3202

USDC No. W-93-CR-96-2

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH O. COBB,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

--------------------

December 7, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Keith O. Cobb, federal prisoner # 60806-080, moves this

court for a certificate of appealability (COA) to challenge the

denial of his motion, filed pursuant to 28 U.S.C. § 2255, to

vacate, set aside, or correct his sentence. He asserts that his

counsel rendered ineffective assistance by: (1) refusing to

permit him to testify in his own defense; (2) refusing to call

his mother and Natalie Bradshaw as defense witnesses; and

(3) omitting to explain that information provided by a

confidential informant could be used to enhance his sentence even
though the informant did not testify at trial and Cobb was never

given an opportunity to cross examine him. He also urges that

the district court erred in declining his request for an

evidentiary hearing to develop these claims.

To obtain § 2255 relief based on ineffective assistance of

counsel, a movant must show that his counsel’s performance was

deficient and that the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687, 694

(1984). The court indulges in “a strong presumption” that

counsel's representation fell “within the wide range of

reasonable professional competence.” Bridge v. Lynaugh, 838 F.2d

770, 773 (5th Cir. 1988). To prove deficient representation, a

defendant must show that her attorney’s conduct “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at

688. To establish prejudice, a movant must show that counsel's

errors were so serious that they deprived the defendant of a

substantive or procedural right to which the law entitled him and

thus rendered the trial proceedings unfair or the result

unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). If

the movant makes an insufficient showing on either the deficient

performance or the prejudice prong of the ineffective assistance

of counsel test, the court need not address the other. 

Strickland, 466 U.S. at 697.

“A criminal defendant has a constitutional right to testify

in his own behalf, and this right is granted to the defendant

personally and not to his counsel.” United States v. Martinez,

181 F.3d 627, 628 (5th Cir. 1999) (citing Rock v. Arkansas, 483
No. 99-50459

- 3 -

U.S. 44, 51-53 (1987)). A waiver of this right must be knowing

and voluntary. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.

1997) (§ 2254 petition), cert. denied, 119 S. Ct. 418 (1998).

The district court’s written order did not directly address

Cobb’s assertion that his counsel had denied him his

constitutional right to testify. Rather, the court opined that

counsel’s refusal to permit Cobb to testify had been a matter of

trial strategy that fell within the ambit of reasonable

professional assistance. Cobb’s right to testify, however, is

vested exclusively in him and may not be waived on his behalf by

counsel. See Martinez, 181 F.3d at 628. It thus cannot be a

matter of “sound trial strategy” for counsel to deny a defendant

his right to testify. See id.

Accordingly, we hereby GRANT Cobb a COA on the issue whether

his counsel was ineffective for refusing to permit him to

testify, VACATE the district court’s order denying this claim,

and REMAND for further proceedings.

As for Cobb’s claims that his counsel rendered ineffective

assistance by omitting to call exculpatory witnesses and by

failing to explain that the Government’s confidential informant

likely would not testify at trial, we find that he has failed to

demonstrate with the requisite degree of clarity that he has been

denied a constitutional right. See § 2253(c)(2). Accordingly,

we DENY him a COA with regard to these claims.

COA GRANTED; VACATED AND REMANDED.