* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### MAY 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-5149

v. N.D. Oklahoma LOUIS ERNESTO SANTURIO,

Defendant - Appellant. (D.C. No. 97-CV-368-C)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. Petitioner, Louis Santurio, a federal inmate appear ing pro se, requests a certificate of appealability to appeal the districtcourt’s dismissal of his motion to1 Although Mr. Santurio filed his brief on February 11, 1998, he did not file an

application for a certificate of appealability and his brief did not discuss the issue. The government then moved to dismiss the case, arguing that because Santurio had failed to “brief any request for a certificate of appealability in this court” as required by this court’s Emergency General Order of October 1, 1996, his appeal must be dismissed. An order of this court was subsequently filed, referring the motion to this panel. Because pursuant to Fed. R. App. P. 22(b), we may construe Mr. Santurio’s notice of appeal as a request for a certificate of appealability, seeHoxsie v. Kerby , 108 F.3d 1239, 1241 (10th Cir.), cert. denied , 118 S. Ct. 126 (1997), and because we generally construe pro se pleadings liberally, seeHaines v. Kerner, 404 U.S. 519, 520-21 (1972), we deny the government’s motion to dismiss on these grounds. -2- vacate, set aside, or correct an illegal sentence p ursuant to 28 U.S.C. § 2255. 1 We deny the certificate and dismiss the appeal.

BACKGROUND On October 13, 1992, Mr. Santurio and his codefenda nt, Carmen Serrano, were stopped for a traffic violation, which ultimat ely led to a warrantless search of the vehicle in which they were traveling and the seizure of 74 kg of cocaine. Both were subsequently charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)( ii), and aiding and abetting, in violation of 18 U.S.C. § 2. Prior to trial, Mr. Sa nturio’s counsel filed a motion to suppress the evidence obtained by this search, and, after an evidentiary hearing, the motion was denied. The case was then tried to a jury. The court granted Ms. Serrano a judgment of acquittal at the close of the government’s evidence, and therefore the jury deliberated as to Santurio only. After the jury returned a guilty-3-

verdict, Santurio was sentenced to 120 months’ impr isonment followed by five years’ supervised release, and a $30,000 fine was i mposed. On direct appeal, we upheld the district court’s denial of Santurio’s mo tion to suppress. See United States v. Santurio , 29 F.3d 550 (10th Cir. 1994). He now brings this § 2255 petition, once again attacking the legality of the stop and search, and raising two other issues. The district court denied both the § 2255 petition and Santurio’s subsequent request for a certificate of appealabili ty.

DISCUSSION The court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitution al right. 28 U.S.C. § 2253(c)(2). Mr. Santurio argues that: (1) the d istrict court erred when it denied his motion to suppress evidence; (2) the district c ourt erred when it permitted government witnesses to offer inaccurate testimony at trial; and (3) the district court erred in failing to recognize “the total ineffectiveness” of his courtappointed trial counsel and in denying his request for appointment of new counsel. Mr. Santurio’s first two arguments are not properly before this court. As indicated above, his Fourth Amendment claim has bee n previously considered and disposed of by this court on direct appeal, and thu s is procedurally barred. See2 When a defendant/petitioner fails to raise an issue on direct appeal, he is barred

from raising the issue in a § 2255 proceeding unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or, a fundamental miscarriage of justice if the claim is not considered. United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996); seeUnited States v. Frady , 456 U.S. 152, 167-68 (1982). A colorable claim of factual innocence can be sufficient to establish a fundamental miscarriage of justice, Cox, 83 F.3d at 341, and we acknowledge that in discussing this argument, Santurio does allege that he is actually innocent of all the charges against him. SeeAppellant’s Br. at 18, 22. However, Mr. Santurio’s claim is not colorable, and is therefore insufficient to overcome the procedural default. -4- United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994) (stating that w here the court of appeals has previously considered and disp osed of issues on direct appeal, a defendant may not raise these issues unde r § 2255). Mr. Santurio’s argument regarding inaccurate trial testimony presents new issues that were not presented to or addressed by t he district court in the § 2255 action below; therefore, we do not address it. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (stating that as a general rule, this court will not consider on appeal an issue that was not raised below). Furthermore, these issues could have been presented on direct appeal and were

not. 2 See United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996) (“A § 2255 motion is not available to test the legality of a m atter which should have been raised on direct appeal.”). Thus, we address only Mr. Santurio’s argument that he received ineffective assistance of counsel. See United States v. Galloway , 56 F.3d 1239, 1240-41-5-

(10th Cir. 1995) (stating that ineffective assistan ce of counsel claims are properly brought in collateral proceedings and not on directappeal). A claim of ineffectiveness of counsel is a mixed question of l aw and fact which we review de novo. Duvall v. Reynolds , Nos. 96-6329, 97-6299, 1998 WL 97748, at *4 (10th Cir. Mar. 4, 1998). To succeed on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his counsel’s performance fel l “below an objective standard of reasonableness” and was so prejudicial “that 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, 688, 694 (1984). The defendant/petitioner bears th e burden of proving both deficient performance and prejudice, see Brecheen v. Reynolds , 41 F.3d 1343, 1365 (10th Cir. 1994), and after a careful examinat ion of the record, we conclude that Mr. Santurio has failed to meet this burden. In essence, Mr. Santurio alleges that his counsel w as ineffective for eight

reasons: 1. Failing to hire an investigator, interview poten tial witnesses, or to otherwise conduct a proper investigation. 2. Failing to argue pretextual stop. 3. Failing to challenge prosecution witnesses, incl uding Officer Hornbeck as to his ability to detect odors. 4. Failing to present any evidence or witnesses at trial and waiving opening argument.-6-

5. Failing to file objections to the PSR regarding the amount of drugs used to determine the base offense level. 6. Failing to call the K-9 handler as a witness. 7. Failing to call Ms. Serrano as a witness. 8. Failing to present evidence of his insulin depen dency or to argue his medical condition. Appellant’s Br. at 4-6. We do not address the subs tance of these assertions, however, because in some cases we proceed directly to the issue of prejudice. United States v. Haddock , 12 F.3d 950, 955 (10th Cir. 1993) (“The Supreme Court has observed that often it may be easier to d ispose of an ineffectiveness claim for lack of prejudice than to determine wheth er the alleged errors were legally deficient.”). This is such a case. We acc ordingly express no opinion on whether the performance of Santurio’s counsel was d eficient. With regard to the first five of the above allegati ons, Santurio makes only the most general assertions of prejudice, arguing t hat he had a right to a pre-trial investigation, that he was denied the justice to wh ich he is entitled, that he has satisfied the two-prong test of Strickland , and that he was deprived of a fair trial.
See Appellant’s Br. at 6-9. These nonspecific and con clusory statements are insufficient to satisfy his burden under Strickland . See Stafford v. Saffle , 34 F.3d 1557, 1564-65 (10th Cir. 1994) (stating that vague and conclusory evidence is insufficient to satisfy the prejudice prong of Stri ckland ); United States v. Mealy , 851 F.2d 890, 908 (7th Cir. 1988) (stating that con clusory allegations cannot satisfy the prejudice prong of Strickland ); see also Hall v. Bellmon , 935 F.2d-7-

1106, 1110 (10th Cir. 1991) (stating that even pro se petitioners must allege sufficient facts on which a recognized legal claim could be based, and conclusory allegations will not suffice). Santurio does attempt to make specific assertions o f prejudice as to the last three of his allegations, but even these assertions are insufficient and ultimately conclusory. First, he alleges that the K-9 handlerwas an essential witness because he could have challenged the account of the search given by the arresting officer. However, Mr. Santurio does not present any evidence as to what the K-9 handler would have said had he appeared at the evid entiary hearing or at trial, thus making any finding of prejudice on this claim nearly impossible. See Coleman v. Brown , 802 F.2d 1227, 1234 (10th Cir. 1986); Lawrence v.
Armontrout , 900 F.2d 127, 130 (8th Cir. 1990) (stating that w hen an ineffective assistance claim centers on a failure to investigat e and elicit testimony from witnesses, the petitioner must “demonstrate, with s ome precision, the content of the testimony they would have given at trial.”(quot ation omitted)). By failing to show what testimony this witness could have given, Mr. Santurio cannot show that there is a reasonable probability that but forcounsel’s allegedly deficient performance, the result of the trial would have bee n different. See Strickland , 466 U.S. at 694.3 In arguing the illegality of the search, Santurio refers the court to an affidavit Ms.

Serrano gave in December 1993, eight months after Santurio was sentenced. In this affidavit, Ms. Serrano says, inter alia, that she did not smell “a strange odor” in the vehicle, and that at one point “the policeman pushed [Santurio] back into the patrol car.” R. Vol. I, Tab 44, Ex. G. She also indicates that at least some search of the vehicle was conducted before the police officer asked Santurio to sign the consent form. Id. -8- Second, presumably referring to Ms. Serrano, Santur io asserts that it was error for his counsel not to call the witness that could present the only defense available. See Appellant’s Br. at 6. Although Santurio does not specifically allege what that defense would have been, he indicates later in his brief that Ms. Serrano would have supported his version of the eve nts surrounding the search of the vehicle. 3 However, given the evidence against Mr. Santurio and the potential complicity of Ms. Serrano, we do not think it unrea sonable for counsel to have made the tactical decision under her discretion notto call Ms. Serrano as a witness at the evidentiary hearing. See United States v. Janoe , 720 F.2d 1156, 1162-63 (10th Cir. 1983). As for the trial, it is true that Ms. Serrano was acquitted at the close of the government’s evidence and thus could have safely testified in Santurio’s behalf. Santurio fails to recognize, however, that by the time Ms. Serrano was acquitted, the court had alrea dy ruled on the legality of the search. Because the legality of the search was notat issue during the trial, we are confident that the result of the trial would not have been different had Ms. Serrano testified.4In any event, were we to address the merits of these requests, we would agree

with the district court that a safety-valve credit is not warranted under these (continued...) -9- Third, Santurio alleges that because of his lack of insulin during his encounters with the arresting officer and then late r that evening with several DEA agents, the voluntariness of his answers was “dimin ished.” Appellant’s Br. at 4. He does not present any evidence, however, that he was actually insulin dependant at all, that he was insulin deprived at t he time of the interviews, or that a state of insulin deprivation did, or could, affec t the voluntariness of his responses. “[A] defendant has a ‘burden of supplyi ng sufficiently precise information,’ of the evidence that would have been obtained had his counsel undertaken the desired investigation, and of showin g ‘whether such information . . . would have produced a different result.’” Un ited States v. Kamel , 965 F.2d 484, 499 n.45 (7th Cir. 1992) (quoting United State s ex rel. Cross v. DeRobertis , 811 F.2d 1008, 1016 (7th Cir. 1987)). Finally, Mr. Santurio requests a change of venue du e to the district court’s bias against him, asks that we remand for further d eparture due to mitigating factors and grant him a safety-valve credit, and as ks that we allow him to amend his brief to supplement it with exhibits he has notyet received. Appellant’s Br. at 8, 21, 22. Because he has failed to raise these is sues in anything other than a conclusory manner, we decline to address them. 4 See Drake v. City of Fort4 (...continued)

circumstances. SeeR. Vol. I, Tab 47 at 13. Also, we would deny Santurio’s requests to supplement his brief and for a change of venue. -10- Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite th e liberal construction afforded pro se pleadings, the court will not const ruct arguments or theories for the [party] in the absence of any discussion of tho se issues.”).

CONCLUSION Therefore, because Santurio has failed to make a su bstantial showing of the denial of a constitutional right, the certificate o f appealability is DENIED and the appeal is DISMISSED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge