United States v. Prows, 10th Cir. (2008)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS
June 2, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
DARRELL DEAN PROWS, also
known as Darrell D. Prows, also
known as D. Dean Prows,
No. 06-4298
(D.C. Nos. 2:05-CV-494-BSJ and
2:04-CR-102-BSJ)
(D. Utah)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
Defendant-Appellant Darrell Dean Prows, appearing pro se, seeks a

certificate of appealability (COA) pursuant to 28 U.S.C. 2253(c)(1) to
challenge the district courts denial of his 28 U.S.C. 2255 motion to vacate, set
aside, or correct his sentence, based on his claim of ineffective assistance of
This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
counsel. We have jurisdiction under 28 U.S.C. 1291 and 2253(a). Reviewing

Mr. Prowss filings liberally, 1 we hold that no reasonable jurist could conclude
that the district courts ruling was incorrect. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Accordingly, we DENY Mr. Prowss application for a COA and
DISMISS his appeal.
I. BACKGROUND
The facts of this case are set forth in our earlier opinion of United States v.
Prows, 448 F.3d 1223 (10th Cir. 2006), and need only be summarized here.
Following a 1985 drug conviction in the Northern District of Florida, for
which Mr. Prows was ordered to pay a $125,000 fine, the U.S. Attorneys office
for that district filed a judgment lien in Salt Lake County, Utah, to perfect that
judgment against Mr. Prows. When Mr. Prows bought a home in Utah, and also
when he subsequently refinanced his home, the title company noted the
outstanding government lien. However, each time this happened, Mr. Prows
assured the title company, through a signed affidavit, that he was not the same
person identified in the lien. Based on his false statements in these affidavits,
Mr. Prows was convicted on two counts of mail fraud.
Because Mr. Prows is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
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II. DISCUSSION
In reviewing a denial of a 2255 motion, we review the district courts
legal rulings de novo and its factual findings for clear error. United States v.
Orange, 447 F.3d 792, 796 (10th Cir. 2006). When, as here, the claim is for
ineffective assistance of counsel, which presents a mixed question of law and
fact, we review the claim de novo. Id.
To demonstrate ineffective assistance, a defendant must show that his
attorneys performance was deficient and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
failure to make either of these showings is dispositive. Orange, 447 F.3d at 797.
To demonstrate that the performance was deficient, the defendant must show that,
considering all the circumstances, counsels representation fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 688.
Counsels performance must have been completely unreasonable, not
merely wrong. Barkell v. Crouse, 468 F.3d 684, 689 (10th Cir. 2006) (quoting
Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999)). This review of counsels
performance is highly deferential. Strickland, 466 U.S. at 689. To demonstrate
that the performance was prejudicial, [t]he defendant must show that there is a
reasonable probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different. Id. at 694. The reasonable probability
must be sufficient to undermine confidence in the outcome. Id.
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Mr. Prows makes numerous assertions to support his claim that his trial
attorney was ineffective. He claims that his attorney had a psychotic episode,
witnessed by the district court, was mentally incompetent when he represented
Mr. Prows at trial, and would often discuss matters irrelevant to his representation
of Mr. Prows. Application for COA, filed Feb. 22, 2007, at 3-4a; R., Vol. I, Doc.
1, Statement of Facts, at 2 ( 2255 Motion, filed June 13, 2005). He also argues
that his attorney should have presented a number of arguments at trial but failed
to do so, even after promising Mr. Prows that he would.
However, there is no evidence that Mr. Prowss attorneys performance was
deficient at trial. Mr. Prows asserts that his attorney should have presented
information (a) suggesting that one government witness, whose testimony was
the vast majority of the governments case, was fabricating her testimony; (b)
indicating that Mr. Prows had sufficient legal skills to win cases in the United
States Supreme Court; and (c) challenging the testimony of various other
government witnesses. R., Vol. I, Doc. 1, Statement of Facts, at 2, 4, 7-10. Mr.
Prows claims that his attorney represented that he would present evidence to that
effect and that he failed to do so.
Yet, attorneys have wide latitude in making tactical decisions. Strickland,
466 U.S. at 689. [C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Id. at 690. The fact that Mr. Prowss attorney may have
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decided not to make the exact arguments that Mr. Prows desired, standing alone,
would not demonstrate that the attorneys decisions were so completely
unreasonable as to constitute ineffective assistance. Mr. Prowss assertions that
his attorney was mentally incompetent are not enough to support his claims. Cf.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ([C]onclusory allegations
without supporting factual averments are insufficient to state a claim on which
relief can be based.). Furthermore, there is evidence that Mr. Prowss attorney
did actually attempt to present the evidence as promised, but rulings by the
district court precluded him from fully exploring these issues at trial.
Accordingly, any failure to fully present the arguments cannot be attributed to
Mr. Prowss attorneys professional judgment.
Even if we were to assume that Mr. Prowss attorneys actions were
completely unreasonable, Mr. Prows would still be unable to demonstrate that
these actions were so prejudicial as to undermine confidence in the outcome. See
Strickland, 466 U.S. at 694. It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding. Id. at 693.
As the district court correctly noted, none of the arguments Mr. Prows believes
should have been made would have undermined the governments proof as to the
-5-
essential elements of mail fraud. Accordingly, Mr. Prows cannot meet the second
element of the Strickland standard. 2
For the reasons stated above, Mr. Prowss request for a COA is DENIED
and his appeal is DISMISSED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
Mr. Prows also argues that his appellate counsel was ineffective. He
did not raise this claim in his original 2255 motion but instead filed a motion
with the district court labeled, Suggestion for Adding Another Issue to the
Pending 2255 Motion. R., Vol. I, Doc. 24. The district court did not address Mr.
Prowss filing at any time prior to or in its order denying Mr. Prowss 2255
motion. Even assuming arguendo that Mr. Prows has properly preserved this
contention for our review, he cannot prevail on it.
Mr. Prows argues that counsel was ineffective in conceding, when
the government appealed his suspended sentence, that the district court was
without power to suspend the sentence. To prove ineffective assistance of
appellate counsel, Mr. Prows must demonstrate a Strickland violation as discussed
supra. See Coronado v. Ward, 517 F.3d 1212, 1216 (10th Cir. 2008). The record
does not support such a showing. [E]ven if a defendant shows that particular
errors of counsel were unreasonable, [] the defendant must show that they
actually had an adverse effect on the defense. Strickland, 466 U.S. at 693. Mr.
Prows cannot demonstrate that his appellate attorneys concession had such an
adverse impact. Our decision to remand for resentencing in the governments
appeal was not based on Mr. Prowss counsels concession. Rather, we stated,
We come to the same conclusion [as Mr. Prowss attorney and the government]
because the 1984 Sentencing Reform Act repealed the prior statutory authority to
stay sentences. Prows, 448 F.3d at 1226-27. Accordingly, Mr. Prows is unable
to meet the Strickland standard.
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.

Defendant-Appellant Darrell Dean Prows, appearing pro se, seeks a

counsel. We have jurisdiction under 28 U.S.C. 1291 and 2253(a). Reviewing

Entered for the Court

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