FILED

United States Court of Appeals

Tenth Circuit

November 14, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN MCALLISTER HOOD,

Defendant-Appellant.

No. 12-4118

(D.C. No. 1:12-CV-00033-DS and 

1:07-CR-00078-DS-1)

(D. Utah)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.

John Hood seeks to undo his conviction and sentence for federal drug

charges by way of 28 U.S.C. § 2255. The district court declined to grant relief

under that provision so now Mr. Hood seeks our assistance. But before

proceeding any further, Mr. Hood must first win a certificate of appealability

(“COA”). We may grant a COA only if Mr. Hood makes a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do this, he

must demonstrate that “reasonable jurists could debate whether (or, for that

matter agree that) [his] petition should have been resolved in a different manner

*

 This order is not binding precedent except under the doctrines of law of

the case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
[than the district court thought] or that the issues presented [a]re adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted).

With these standards in mind, we deny Mr. Hood’s COA request. Mr.

Hood argues that his trial counsel was ineffective. To prevail on any claim that

his counsel was constitutionally ineffective, however, a petitioner must show two

things: (1) counsel’s representation “fell below an objective standard of

reasonableness” and (2) “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 

Strickland v. Washington, 466 U.S. 668, 687-78, 691-92 (1984). Mr. Hood says

his counsel ran afoul of Strickland in three independent ways. But the district

court’s decision rejecting each of his theories simply is not open to debate.

First, Mr. Hood complains his counsel failed to file a motion to suppress

the drugs that were found in a backpack he was carrying when he was arrested. 

But a lawyer’s performance isn’t deficient because he decided not to file a motion

that was doomed to fail. And as the district court explained, that’s the case here: 

the search of the backpack was consistent with the Fourth Amendment’s searchincident-to-arrest and inevitable-discovery doctrines and any motion to suppress

arguing otherwise would have failed.

Second, Mr. Hood argues his counsel failed to advise him adequately in

connection with a plea offer. Had he been informed by counsel he faced a

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potential life sentence if convicted at trial, Mr. Hood says, he would have

accepted the plea deal he was offered. But as the district court’s decision points

out, Mr. Hood knew the charges against him carried a potential life sentence, the

decision whether to accept the plea offer was left to him, and he freely decided to

reject the plea. In these circumstances, it is plain Mr. Hood cannot show deficient

performance on the part of his counsel. There is simply no “reasonable

probability that the plea offer would have been presented to the court (i.e., that

[he] would have accepted the plea and the prosecution would not have withdrawn

it in light of intervening circumstances), [and] that the court would have accepted

its terms.” Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). To be sure, Mr. Hood

alleges that he harbored a secret misunderstanding about the meaning of the term

“life in prison,” but he offers no evidence his attorney was responsible for this

putative misunderstanding or even knew or should have known of it. Again, in

these circumstances we see no plausible claim for ineffective assistance.

Third, Mr. Hood argues that his counsel performed deficiently by choosing

to challenge the government’s evidence at trial rather than presenting witnesses of

his own. But as we noted in Mr. Hood’s direct appeal, his counsel challenged the

government’s evidence effectively and in many different ways. See United States

v. Hood, 615 F.3d 1293, 1300 (10th Cir. 2010). Neither is it the case that defense

counsel hadn’t bothered to consider the possibility of presenting his own

witnesses: he had, for example, retained an expert as a possible witness to rebut

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the government’s toxicology evidence. At the end of the government’s case,

moreover, counsel explained that he had opted not to present that or other

witnesses only because he was “satisfied with the evidence” as presented. And

even now we see no reason to doubt that assessment: Mr. Hood offers no

persuasive account how further witnesses would have meaningfully altered the

evidentiary equation in his favor. 

Mr. Hood replies the district court should have at least held an evidentiary

hearing on his habeas petition. But a district court is not obliged to hold such a

hearing if “the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). That situation, the

court found, fit this case. And we see no room for disagreement here either. Mr.

Hood says a hearing was necessary because he needed to “explain in more detail”

his Strickland claims. But Mr. Hood has not persuaded us how or what a hearing

would have illuminated that the district court did not already know and account

for in its written decision. Mr. Hood’s appeal to the cumulative error doctrine is

likewise unpersuasive, given that we (like the district court before us) can discern

no potential errors here to cumulate.

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The application for a COA is denied and this appeal is dismissed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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