UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

DEANDRE LARON WASHINGTON, 

Defendant – Appellant. 

No. 14-7083 

(D.C. Nos. 6:12-CV-00188-RAW & 

6:09-CR-00036-RAW-2) 

(E.D. Okla.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

 DeAndre Washington seeks a certificate of appealability (“COA”) to appeal the 

district court’s denial of his 28 U.S.C. § 2255 habeas petition. We deny a COA and 

dismiss the appeal. 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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 20, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I 

 A jury found Washington guilty of violating 18 U.S.C. §§ 2 and 1512(a)(1)(A) by 

attempting to kill a person with intent to prevent him from testifying in federal court. 

The trial court denied Washington’s request that the jury be instructed on the defense of 

entrapment. His counsel chose not to appeal this issue, but did appeal several others. On 

direct appeal we affirmed Washington’s conviction. United States v. Washington, 653 

F.3d 1251 (10th Cir. 2011). 

 Washington subsequently moved for § 2255 relief, claiming that he asked his 

attorney to appeal the entrapment instruction issue, but his attorney refused to do so. In 

an affidavit, Washington’s counsel avers that he does not recollect such a request. To 

resolve this inconsistency, Washington moved to supplement the record with several 

recorded telephone conversations. The district court granted this motion, giving 

Washington until March 21, 2014 to submit the recordings. However, Washington was 

unable to obtain the phone records by that time, and had not yet obtained them when the 

district court denied his § 2255 motion several months later. After judgment had been 

entered, Washington filed a “Motion Requesting Court Intervention,” seeking the district 

court’s assistance in obtaining the phone records. The district court denied the motion. 

Washington timely appealed.1

 1

 Although the district court docketed Washington’s notice of appeal seven days 

after the applicable deadline, he submitted a declaration under penalty of perjury stating 

Continued . . . 

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II 

Washington may not appeal the denial of § 2255 relief without a COA. 28 U.S.C. 

§ 2253(c)(1)(B). We will issue a COA “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard, 

Washington 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) (quotation omitted). Because Washington proceeds 

pro se, we construe his filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 

1991). 

A

 Washington argues that the district court abridged his constitutional due process 

rights because it neither granted nor denied him a COA. But it is well established in the 

Tenth Circuit that if a district court fails to grant or deny a COA within 30 days of issuing 

final judgment, a COA is deemed denied. See, e.g., United States v. Kennedy, 225 F.3d 

1187, 1193 n.3 (10th Cir. 2000).2 Given this authority, and the fact that this court is 

 

that he placed his notice of appeal in the prison mail system before the deadline. His 

appeal is therefore timely. See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005). 

2

 Language requiring that district courts decide whether to issue a COA has moved 

from Fed. R. App. P. 22(b)(1) to Rule 11(a) of the Rules Governing Proceedings under 

28 U.S.C. § 2254 or § 2255. See Fed. R. App. P. 22, Notes of Advisory Committee on 

2009 Amendments. We have applied our deemed denied rule subsequent to this change. 

See United States v. Chon, 434 F. App’x 730, 731 (10th Cir. 2011) (unpublished). 

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empowered to grant a COA, see Fed. R. App. P. 22(b)(1), Washington has not made out a 

due process violation, cf. Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011) 

(“Due process is flexible and calls for such procedural protections as the particular 

situation demands.” (quotation omitted)). 

B

 Washington contends that his appellate counsel was ineffective because he failed 

to appeal the district court’s denial of an entrapment instruction. A petitioner claiming 

ineffective assistance of counsel must establish “that counsel made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment” and that “the deficient performance prejudiced the defense.” Strickland v. 

Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show 

that there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 694. Proving ineffective 

assistance of appellate counsel based on failure to raise a particular issue is difficult 

because “counsel need not (and should not) raise every nonfrivolous claim, but rather 

may select from among them in order to maximize the likelihood of success on appeal.” 

Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quotation omitted). Courts must 

give “deferential consideration . . . to any professional judgment involved in [an issue’s] 

omission.” Id. 

 Giving appropriate deference to the strategic decisions of Washington’s appellate 

counsel, we conclude that he did not perform deficiently by failing to appeal the denial of 

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an entrapment instruction. Counsel submitted an affidavit explaining that he and his 

associates determined that the issue was not one of the strongest arguments on appeal. 

The wisdom of this decision is evidenced by the lengthy published opinion engaging with 

several complex legal issues that were raised in Washington’s direct appeal. See 

Washington, 653 F.3d at 1251. 

Washington also contends that the district court decided his ineffective assistance 

of counsel claim prematurely because the court did not consider recorded telephone 

conversations that Washington sought unsuccessfully to obtain. He further contends that 

the court erred by denying his post-judgment motion requesting the court’s assistance in 

obtaining them. We disagree. The district court was able to decide Washington’s claim 

based on an attorney affidavit explaining that the decision not to appeal this issue was 

strategic. See LaFevers v. Gibson, 182 F.3d 705, 722 (10th Cir. 1999) (explaining that 

“appellate counsel has no constitutional obligation to raise every nonfrivolous issue, 

whether requested by the defendant or not”). Therefore, the district court did not abuse 

its discretion by denying Washington’s post-judgment motion. See Allen v. Minnstar, 

Inc., 8 F.3d 1470, 1474 (10th Cir. 1993) (concluding that a district court did not abuse its 

discretion by denying post-judgment motion to supplement the record when the district 

court was able to decide an issue based on the record before it).3

 3

 Washington argues that he has made a showing that further investigation under 

the court’s subpoena power would likely lead to the discovery of evidence that would 

warrant an evidentiary hearing. See United States v. Velarde, 485 F.3d 553, 560 (10th 

Continued . . . 

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C

 Washington argues that he is actually innocent based on several recent cases that 

have narrowed the scope of the federal witness tampering statute. He relies on United 

States v. Tyler, 732 F.3d 241 (3d Cir. 2013), which held that a claim of actual innocence 

may be raised when a defendant “is being detained for conduct that has subsequently 

been rendered non-criminal by an intervening Supreme Court decision.” Id. at 246 

(emphasis added). Assuming that we were to adopt the Third Circuit’s view of actual 

innocence, Washington’s argument nevertheless fails because neither Supreme Court 

case he cites is “subsequent” to his conviction: one was decided before he was indicted, 

and the other was decided while his appeal was still pending. See Fowler v. United 

States, 131 S. Ct. 2045 (2011);4 Arthur Andersen, LLP v. United States, 544 U.S. 696 

(2005). 

 

Cir. 2007). But the district court concluded that Washington’s claims would fail even if 

he directed his counsel to raise the issue on appeal, a conclusion we affirm. Accordingly, 

Washington has not shown that he would have been entitled to an evidentiary hearing had 

he procured the recordings. See id. (“[T]he court is required to conduct the evidentiary 

hearing only if the admissible evidence presented by petitioner, if accepted as true, would 

warrant relief as a matter of law.”). 

4

 Fowler was decided on May 26, 2011; Washington’s direct appeal was decided 

on August 9, 2011. 

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III 

For the foregoing reasons, we DENY a COA and DISMISS the appeal. 

Washington’s motion to proceed in forma pauperis is GRANTED. 

 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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