UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNY MARTON LOTT,

Defendant-Appellant.

No. 09-6161

(D.C. Nos. CR-99-30-D-2; CIV-07-934-D)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, SEYMOUR and EBEL, Circuit Judges. 

 Defendant Johnny Marton Lott seeks a certificate of appealability (COA) from this 

court to challenge the district court’s denial of his motion to vacate, set aside, or correct 

sentence under 28 U.S.C. § 2255. Because Mr. Lott has failed to meet the standards 

required before this court can issue a COA, we DENY his request and DISMISS this 

appeal. We also DENY his motion to proceed in forma pauperis. 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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

FILED 

United States Court of Appeals 

Tenth Circuit 

February 16, 2010

Elisabeth A. Shumaker 

Clerk of Court

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Background

 Mr. Lott was convicted in the United States District Court for the Western District 

of Oklahoma on multiple drug counts: conspiracy to manufacture and distribute 

methamphetamine in violation of 21 U.S.C. § 846; distribution of methamphetamine in 

violation of 21 U.S.C. § 841(a)(1); and maintaining a residence to manufacture 

methamphetamine in violation of 21 U.S.C. § 856(a)(1). He was sentenced to concurrent 

terms totaling 360 months’ imprisonment. The facts of these underlying convictions are 

recounted in United States v. Lott, 310 F.3d 1231, 1235-38 (10th Cir. 2002) [Lott I], in 

which we affirmed his conviction and sentence. We did, however, remand for a hearing 

on Mr. Lott’s claims that the district court had improperly refused to consider his pro se 

requests for substitution of counsel during trial. Id. at 1248-50. After a hearing on 

remand, the district court determined that there had been no total breakdown in 

communication between Mr. Lott and his trial counsel, and thus substitute counsel was 

not necessary; we affirmed this determination in United States v. Lott, 433 F.3d 718 

(10th Cir. 2006) [Lott II]. 

 As we have previously recounted the facts of Mr. Lott’s case in Lott I and Lott II, 

we here add only those facts necessary to rule on his § 2255 claims. In short, at trial, the 

government presented the testimony of several individuals who had purchased 

methamphetamine from Mr. Lott, as well as extensive physical and documentary 

evidence connecting him to a residence used as a clandestine methamphetamine lab, a 

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hotel room used for similar purposes, and a vehicle in which methamphetamine was 

found. Lott I, 310 F.3d at 1235-36. As the district court here noted, the government’s 

evidence against Mr. Lott was “overwhelming.” Dist. Ct. Op. at 4. During the trial, Mr. 

Lott tendered five pro se motions to the court asserting that he was dissatisfied with his 

counsel. Lott I, 310 F.3d at 1237. On remand, the district court held a hearing and 

denied relief on this ground. On appeal of that decision, we observed that the evidence 

presented at the hearing on remand showed that Mr. Lott and his counsel corresponded 

through letters, spoke on the telephone, and met in person at least twice prior to trial. 

Lott II, 433 F.3d at 721. We also noted that Mr. Lott’s counsel testified that “Lott 

refused to assist him with his defense and instead claimed he had been set up and the 

witnesses were all lying.” Id.

Discussion

 Mr. Lott now seeks a COA from this court on four claims: (1) that he received 

ineffective assistance of counsel because his trial attorney refused to call four witnesses 

Mr. Lott identified; (2) that his trial counsel refused to allow Mr. Lott to testify in his 

own defense, and was thus ineffective; (3) that he received ineffective assistance of 

counsel when his trial attorney refused to seek sequestration of the government’s case 

agent during the trial; and (4) that the district court abused its discretion when it did not 

hold an evidentiary hearing on his § 2255 motion. We will issue a COA “only if the 

applicant has made a substantial showing of the denial of a constitutional right.” 28 

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U.S.C. § 2253(c)(2). To make such a showing, Mr. Lott must demonstrate “that 

reasonable jurists could debate whether (or, for that matter, agree that) the petition should 

have been resolved in a different manner or that the issues presented were ‘adequate to 

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). 

 To make out a claim of ineffective assistance of counsel, Mr. Lott must show that 

“(1) his counsel’s performance was constitutionally deficient, and (2) counsel’s deficient 

performance was prejudicial.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) 

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Deficient performance is 

that which “falls below an objective standard of reasonableness,” and such deficient 

performance is prejudicial if there 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 690, 694. We may consider the two prongs in any order. Id. at 

697. In evaluating the performance of counsel, the court must “indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. Finally, as Mr. Lott now proceeds pro se, we must construe his 

pleadings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

 Mr. Lott first asserts that he received ineffective assistance of counsel because his 

attorney refused to call four witnesses that he had identified: Angela Lott, his daughter, 

Vickie Lott, his ex-wife, Cheri Lott, his sister, and Carron Corn, his mother, who is now 

deceased. The record does not indicate that Mr. Lott made any proffer to the district 

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court during his original trial regarding what these witnesses would have said. He here 

proffers affidavits from the three witnesses still living. (Apl’t Br. Attach.) Mr. Lott 

insists that all four witnesses would have testified that he did not sell drugs, did not enjoy 

the “lucrative” lifestyle of a drug dealer, and frequently borrowed money from them to 

pay his bills. (Id. at 12.) 

 The district court held that, no matter what these witnesses would have testified, it 

would not have been sufficient to overcome the government’s “overwhelming” evidence 

of Mr. Lott’s guilt. Dist. Ct. Op. at 4. We agree, and note further two issues. First, 

according to the affidavits, the only relevant testimony that Mr. Lott claims his family 

members would have offered—that he borrowed money from them and that he lived with 

his sister while not living with his ex-wife—would not, even if presented, have rebutted 

the government’s evidence of Mr. Lott’s involvement in the criminal enterprise. Second, 

we note that Mr. Lott’s counsel submitted an affidavit to the district court asserting that 

Mr. Lott never indicated that he wanted counsel to call any of the referenced witnesses, 

or any witnesses at all, for that matter. (R. Vol. I at 69-70 (“Mr. Lott never suggested or 

gave me the names of any witnesses to call for trial, or at sentencing.”).) Even if we were 

to resolve this factual dispute in Mr. Lott’s favor, we still cannot conclude—on the basis 

of the government’s evidence and the thinness of what Mr. Lott indicates the four 

witnesses would have testified—that presenting the testimony would have made any 

difference to the outcome. Therefore, Mr. Lott cannot establish actual prejudice, and so 

cannot maintain a claim of ineffective assistance of counsel. 

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Second, Mr. Lott asserts that his attorney prevented him from taking the stand to 

testify in his own defense. As the district court noted, such an action would fall below an 

objective standard of reasonableness, and establish deficient performance. See United 

States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992). The district court also noted, 

however, that Mr. Lott’s attorney’s affidavit denies that Mr. Lott ever requested to testify, 

and in fact states that on multiple occasions counsel asked Mr. Lott if he wanted to 

testify, and Mr. Lott declined. (R. Vol. I at 70.) Without resolving this factual dispute, 

we note that even if deficient performance were established by this rationale, Mr. Lott 

would still have to prove actual prejudice. We agree with the district court that, no matter 

what Mr. Lott’s testimony would have been—and he has not indicated in his papers what 

he would have said had he testified—it would not have been sufficient to outweigh the 

overwhelming evidence put on by the government. We concur with the district court that 

Mr. Lott did not receive ineffective assistance of counsel on this issue. 

 On Mr. Lott’s third claim—that his attorney rendered ineffective assistance by 

failing to seek sequestration of the government’s case agent, Detective Phil Long, during 

his trial under Federal Rule of Evidence 615—the district court held that this claim was 

without merit, and we concur. The Rule requires courts to sequester witnesses at the 

request of a party, but contains exceptions for “an officer or employee of a party which is 

not a natural person designated as its representative by its attorney” and “a person whose 

presence is shown by a party to be essential to the presentation of the party’s cause.” 

Fed. R. Evid. 615(2)-(3). Detective Long, as the government’s case agent and “the 

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person most knowledgeable about the facts,” Dist. Ct. Op. at 7, would have fallen in 

either or both of these categories, had Mr. Lott’s counsel made a motion under Rule 615. 

Therefore, counsel’s performance on this issue was not deficient, and thus Mr. Lott 

cannot establish that he received ineffective assistance of counsel. 

 Finally, Mr. Lott argues that the district court’s decision not to hold an evidentiary 

hearing on his § 2255 petition constituted an abuse of discretion. A district court “must 

hold an evidentiary hearing on the prisoner’s claims unless the motion and files and 

records of the case conclusively show that the prisoner is entitled to no relief.” United 

States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (quotation marks omitted); 28 U.S.C. 

§ 2255(b). We review a district court’s decision not to hold a hearing for abuse of 

discretion. Lopez, 100 F.3d at 119. The district court here concluded that no hearing was 

necessary. Dist. Ct. Op. at 7 n.6. As discussed above, none of Mr. Lott’s contentions in 

his § 2255 motion have merit, and so we cannot hold that the district court abused its 

discretion in electing not to hold an evidentiary hearing. 

Conclusion

 In sum, we conclude that reasonable jurists could not debate the propriety of the 

district court’s dismissal of Mr. Lott’s § 2255 petition. We therefore DENY Mr. Lott’s 

application for a certificate of appealability and DISMISS this appeal. We finally DENY 

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his motion to proceed in forma pauperis. 

ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge 

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