FILED

United States Court of Appeals

Tenth Circuit

April 11, 2012

UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 11-3286
(D. Ct. Nos. 6:11-CV-01082-JTM
and 6:07-CR-10076-JTM-1)
(D. Kan.)

v.
KEVIN HINSON,
Defendant - Appellant.

ORDER

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

On February 10, 2012, the court issued an Order Denying A Certificate of

Appealability in connection with this proceeding. The appellant, Kevin Hinson, filed a
petition seeking panel rehearing and rehearing en banc.
The request for rehearing en banc was transmitted to all the judges of the court
who are in regular active service. As no member of the panel and no judge in regular
active service on the court requested that the court be polled, that part of the petition
seeking rehearing en banc is denied pursuant to Fed. R. App. P. 35.
The panel, however, grants rehearing for the limited purpose of making a minor,
non-substantive change to its order denying a certificate of appealability. The change is
to footnote 3, found on page 4 of the order. The order as modified by the panel shall be

issued as a new decision addressing Mr. Hinsons request for a certificate of

appealability. The result, however, does not change.
Because the panel has fully considered all of Mr. Hinsons other arguments as to
why rehearing should be granted, and because the change resulting from this limited
granting of rehearing is non-substantive, Mr. Hinson may not file a second or successive
rehearing petition. See 10th Cir. R. 40.3.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

by:
Douglas E. Cressler
Chief Deputy Clerk

FILED
United States Court of Appeals
Tenth Circuit

April 11, 2012

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 11-3286
(D.C. Nos. 6:11-CV-01082-JTM and
6:07-CR-10076-JTM-1)
(D. Kan.)

KEVIN HINSON,
Defendant-Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Kevin Hinson, a federal prisoner, seeks a certificate of appealability (COA) to

challenge the district courts denial of his motion for relief under 28 U.S.C. 2255.1 We
deny Mr. Hinsons application for a COA and dismiss this matter.
*

This Order is not binding precedent, except under the doctrines of law of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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule
32.1.
After examining the appellate record, this three-judge panel 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.
1

Because Mr. Hinson is represented by counsel, his filings are not entitled to
the generous construction that we ordinarily afford pro se pleadings. See Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

I. Background
The case against Mr. Hinson began with the investigation of suspected drug dealer
Mac Pingry. After police discovered methamphetamine and marijuana at Mr. Pingrys
residence in November 2005, Mr. Pingry fingered Mr. Hinson as his supplier and agreed
to assist the police by conducting a controlled buy from him. That transaction took place
several days later. In the parking lot of an auto-parts store, while under continuous police
surveillance, Mr. Pingry bought a quarter-pound of ice (high-grade methamphetamine)
from Mr. Hinson for $3,250 in cash. The controlled buy eventually led to Mr. Hinsons
arrest, and he was indicted under four counts pertaining to possession and distribution of
methamphetamine. See United States v. Hinson, 585 F.3d 1328, 133132 (10th Cir.
2009).2
At trial, the government put on substantial evidence showing that Mr. Hinson
was Mr. Pingrys drug supplier. Id. at 1332. Mr. Pingry testified that he regularly
purchased methamphetamine from Mr. Hinsonanywhere from a quarter pound to a
pound several times a week. Id. The government corroborated Mr. Pingrys testimony
with phone records showing a large number of calls between Mr. Pingry and Mr. Hinson
during the relevant time period and a large number of calls between Mr. Hinson and a

Specifically, Mr. Hinson was indicted for conspiracy to distribute

methamphetamine in violation of 21 U.S.C. 841(a)(1), possession with intent to
distribute methamphetamine in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2,
distribution of methamphetamine in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2,
and using telephones in facilitating the knowing and intentional distribution of
methamphetamine in violation of 21 U.S.C. 843(b).
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certain Oscar, Mr. Hinsons alleged supplier. In addition, the evidence revealed that
Mr. Hinson possessed and transacted in large amounts of cash even though Internal
Revenue Service records showed that he had very little income. A final bit of evidence,
relevant to the instant matter, was testimony from Detective Hamilton that her
investigation of Mr. Hinson began when she heard from a different confidential informant
that a fellow by the name of Kevin, white male, supplied Mac Pingry with
methamphetamine ice. Id. (quoting Aplt. App. at 226) (internal quotation marks
omitted). The jury found Mr. Hinson guilty on all counts, and he was sentenced to 240
months imprisonment. His conviction and sentence were affirmed on direct appeal. Id.
at 1341.
In March 2011, Mr. Hinson filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. 2255, claiming that his trial counsel was constitutionally
deficient. The district court denied the motion and also denied a COA. Mr. Hinson now
seeks a COA from this court, reasserting his ineffective-assistance claim.
II. Standard of Review
A COA is a jurisdictional prerequisite to our review of the merits of a 2255
appeal. See 28 U.S.C. 2253(c)(1)(B); Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012).
We will issue a COA only if the [movant] has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. 2253(c)(2). To satisfy this standard, the movant
must demonstrate that reasonable jurists could debate whether . . . the [ 2255 motion]
should have been resolved in a different manner or that the issues presented were
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adequate to deserve encouragement to proceed further. United States v. Tony, 637 F.3d
1153, 1157 (10th Cir. 2011) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))
(internal quotation marks omitted). When, as here, the district court denies a motion on
the merits, the movant carries his burden by showing that reasonable jurists would find
the district courts assessment of the constitutional claims debatable or wrong. United
States v. Bedford, 628 F.3d 1232, 1234 (10th Cir. 2010) (quoting Slack, 529 U.S. at 484)
(internal quotation marks omitted).
III. Discussion
Before the district court, Mr. Hinson asserted eight reasons why his trial counsel
rendered constitutionally ineffective assistance. In his COA application before us, Mr.
Hinson has winnowed those reasons down to five. He claims that counsel was ineffective
for (1) failing to obtain from the government various materials that would have allowed
him to impeach Mr. Pingry, (2) failing to impeach Mr. Pingry with the specific terms of
his plea agreement, (3) failing to object to misleading arguments by the government at
trial regarding favorable treatment of Mr. Pingry for his testimony, and (4) failing to
object to the admission of hearsay testimony at trial. Mr. Hinson also asserts (5) that the
cumulative effect of counsels failures prejudiced his defense.3
3

For purposes of clarity, we note the following three items. First, two of the
eight arguments urged by Mr. Hinson in the district court have been merged into a single
argument on appeal. Specifically, Mr. Hinsons separate arguments below that counsel
failed to request Mr. Pingrys PSR and failed to request Mr. Pingrys interview statements
and informant agreement became a single argument in his COA applicationviz., that
counsel was ineffective for failing to obtain from the government various materials that
would have allowed him to impeach Mr. Pingry. We address this argument at Part III.A,
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While the Sixth Amendment guarantees Mr. Hinson the Assistance of Counsel for
his defence, U.S. Const. amend. VIa right that secures not merely the presence of an
attorney but the reasonably effective assistance thereof, Strickland v. Washington, 466
U.S. 668, 687 (1984)Mr. Hinsons claim that counsel was ineffective faces a double
hurdle. He must show both that his counsels performance fell below an objective
standard of reasonableness, and that the deficient performance prejudiced the defense.
Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland, 466 U.S. at
68788). Failure to satisfy either prong is dispositive. Id.
We review counsels performance in light of prevailing professional norms,
United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) (quoting Strickland, 466
U.S. at 688) (internal quotation marks omitted), and our analysis is highly deferential,
Byrd, 645 F.3d at 1168 (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010))
(internal quotation marks omitted). We indulge a strong presumption that counsels
conduct falls within the wide range of reasonable professional assistance, and that the
challenged action might be considered sound trial strategy. Fairchild v. Workman, 579

infra. Second, two other arguments that Mr. Hinson presented to the district courtthat
counsel was ineffective for failing to obtain suppression of evidence seized from his
truck, Aplt. App. at 435 (Dist. Ct. Mem. & Order, filed Aug. 1, 2011), and failing to
object to the sentence imposed, id. at 43536have been abandoned because they were
not presented in his COA application. Finally, Mr. Hinson argued in the district court that
counsel was ineffective for failing to move for a mistrial after the admission of hearsay
testimony at trial, see id. at 434, and he argues in his COA application that counsel was
ineffective for failing to object to the admission of this testimony. We view these
arguments as materially identical, and we address the argument on the merits at Part
III.D, infra.
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F.3d 1134, 1140 (10th Cir. 2009) (quoting Strickland, 466 U.S. at 689). To be
constitutionally deficient, an attorneys performance must have been completely
unreasonable, not merely wrong. Byrd, 645 F.3d at 1168 (quoting Hooks, 606 F.3d at
723) (internal quotation marks omitted).
Even if a defendant can carry his burden under the first prong of Strickland, he
must still show prejudice. Prejudice means a reasonable probability that, but for
counsels error, the result of the proceeding would have been different. Id. (quoting
United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)) (internal quotation marks
omitted). [M]ere speculation does not suffice. Id. Counsels errors must be so
serious as to undermine our confidence in the trials outcome. See id. (quoting
Strickland, 466 U.S. at 687) (internal quotation marks omitted).
We are not persuaded that Mr. Hinsons trial attorney was constitutionally
deficient, nor are we convinced that any alleged errors were prejudicial. We further
believe that these conclusions are not debatable among jurists of reason. We therefore
deny a COA.
A.
Mr. Hinson first claims that his attorney was ineffective for failing to obtain from
the government various materials that would have allowed him to impeach the testimony
of Mr. Pingry, the governments key witness in the case. Specifically, he states that
counsel should have asked the court to order the government to produce (1) an interview
of Mr. Pingry recorded on November 10, 2005, (2) a police report relating to an interview
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of Mr. Pingry on December 13, 2005, (3) Mr. Pingrys informant agreement, and (4) Mr.
Pingrys presentence report (PSR). Mr. Hinson tells us that these materials would have
provided significant ammunition with which to impeach [Mr.] Pingry. Aplt. Opening
Br. at 15. We are not persuaded.
Mr. Hinsons attorney impeached Mr. Pingrys testimony in a number of ways,
highlighting inconsistencies in Mr. Pingrys statements, his prior lies to police, and his
bias due to the plea agreement he reached with the government in exchange for his
testimony. See Aplt. App. at 62053, 66063 (Tr. Test. of Mac Pingry, held Nov. 28,
2007). As the district court found, Mr. Pingrys credibility was addressed fully by both
parties. Id. at 43233 (Dist. Ct. Mem. & Order, filed Aug. 1, 2011). We presume that
counsels decisions represented sound trial strategy, Fairchild, 579 F.3d at 1140
(quoting Strickland, 466 U.S. at 689) (internal quotation marks omitted), and Mr. Hinson
fails to overcome that presumption.
The November 10, 2005, interview of Mr. Pingry and the December 13, 2005,
report held little, if any, impeachment value. For example, Mr. Hinson points to
purported discrepancies between Mr. Pingrys statements and testimony by Mr. Pingry
and others at trial. However, we have carefully reviewed the record, and it is not clear to
us that many of Mr. Pingrys pre-trial statements reveal discrepancies with trial testimony
at all. Furthermore, to the extent that Mr. Pingrys pre-trial statements could conceivably
be read as revealing such discrepancies, they are of a minor sort, and competent counsel
could have reasonably concludedgiven the considerable impeachment to which Mr.
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Pingry already was subjectedthat employing these possible discrepancies would have
been cumulative and of no material effect. In particular, we note that Mr. Pingrys
statements in his November interview are far from pellucid and, at best, would have
provided a very thin thread upon which to hang a line of cross-examination. For
example, contrary to Mr. Hinsons assertions, we are hard-pressed to read Mr. Pingrys
convoluted statements in the November interview as indicating that he dealt with the
Mexican guys directly, Aplt. Opening Br. at 27, which would have contradicted Mr.
Pingrys trial testimony that Mr. Hinson dealt with the Mexican drug suppliers.
Furthermore, Mr. Hinson fails to explain how the informant agreement could have
been used for impeachment purposes, speculating only that, had the agreement been
available, counsel might have shown that Mr. Pingry breached it. Finally, Mr. Hinson
argues that if counsel had requested Mr. Pingrys PSR, he could have shown that Mr.
Pingrys sale of 70 pounds of methamphetamine for Mr. Hinson had not been considered
relevant conduct for sentencing purposesa fact presumably going to Mr. Pingrys bias.
However, Mr. Pingry admitted on both direct and cross-examination that exclusion of the
sale was part of his plea agreement, see Aplt. App. at 66162, and as the district court
pointed out, the plea agreement was admitted into evidence for the jury to reference, id. at
432. Counsels requesting the PSR for this purpose would have been unnecessary and
cumulative. We therefore cannot say that counsels performance fell below an objective
standard of reasonableness. Byrd, 645 F.3d at 1167 (quoting Strickland, 466 U.S. at
68788).
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B.
In a similar vein, Mr. Hinson claims that his attorney should have cross-examined
Mr. Pingry on the specific terms of his plea agreement with the government. Mr. Hinson
faults counsel for failing to establish the specific charges that were dismissed as part of
[Mr.] Pingrys plea agreement and for failing to establish the sentences [Mr.] Pingry
would have faced but for his plea agreement. Aplt. Opening Br. at 20. However,
contrary to Mr. Hinsons assertion, counsel explored the terms of the plea agreement in
cross-examining Mr. Pingry. His questioning revealed that Mr. Pingry had been allowed
to plead to only two of the six counts on which he was originally charged, Aplt. App. at
662, and that Mr. Pingrys sale of methamphetamine for Mr. Hinson would not be
considered for sentencing purposes, id. at 66061. We afford attorneys a good deal of
leeway under the Strickland standard, see Worthington v. Roper, 631 F.3d 487, 503 (8th
Cir. 2011), and we are convinced that counsels performance was reasonable and
grounded in sound tactical decisionmaking. We refuse to second-guess it. See United
States v. Aptt, 354 F.3d 1269, 1284 (10th Cir. 2004).
C.
Mr. Hinson sees constitutional deficiency in his attorneys failure to object to
allegedly misleading arguments by the government regarding favorable treatment of Mr.
Pingry for his testimony. At trial, the government called Mr. Pingrys attorney to the
stand to establish that the government had neither promised to file, nor filed, a motion
under Rule 35 of the Federal Rules of Criminal Procedure for reduction of Mr. Pingrys
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sentence. Aplt. App. at 80613 (Tr. Test. of Phillip White, held Nov. 29, 2007). Also, in
closing arguments, the government told the jury that there was no deal with Mr. Pingry,
and that while Mr. Pingry hope[d] for a sentence reduction in exchange for his
testimony, he was not guaranteed anything. Id. at 1044 (Govts Closing Arguments, held
Dec. 3, 2007). All of this was true. Mr. Hinson complains, however, that the day after
trial, the government filed two motions under seal in [Mr.] Pingrys case, and a short
time later, [Mr.] Pingrys sentence of 63 months was reduced to time served. Aplt.
Opening Br. at 19.
This avails Mr. Hinson nothing. The government denied the existence of an
agreement with Mr. Pingry regarding sentence reduction, and there is nothing to call the
veracity of that representation into doubt. Moreover, as the district court found, the
governments questions and statements at trial did not imply that a Rule 35 motion
would never be filed on behalf of [Mr.] Pingry. Aplt. App. at 43132. Any objection by
trial counsel on these grounds would have been meritless and overruled, and counsel was
therefore not deficient for failing to object.
D.
Mr. Hinson faults his attorney for failing to object when the government elicited
hearsay testimony from Detective Hamilton. Detective Hamilton testified that a
confidential informant had told her that a person named Kevin, white male, supplied
Mac Pingry with methamphetamine ice. Aplt. App. at 666 (Tr. Test. of Det. Sara
Hamilton, held Nov. 28, 2007). Mr. Hinsons counsel did not object to this testimony,
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hearsay though it was.

On direct appeal, Mr. Hinson sought to have his conviction thrown out on the basis
of this testimony. Because no objection to it had been lodged, this court reviewed the
claim for plain error. We acknowledged that the detectives statement was impermissible
hearsay and thus that its admission into evidence was erroneous. See Hinson, 585 F.3d at
1337. We concluded, however, that the error did not affect Mr. Hinsons substantial
rights because he could not show a reasonable probability that, but for the error
claimed, the result of the proceeding would have been different. Id. at 1338 (quoting
United States v. Portillo-Vega, 478 F.3d 1194, 1202 (10th Cir. 2007)) (internal quotation
marks omitted).
The substantial-rights prong of plain-error review is identical in form and
substance to the prejudice prong of Strickland, which requires a defendant to show a
reasonable probability that, but for counsels error, the result of the proceeding would
have been different. Byrd, 645 F.3d at 1168 (quoting Challoner, 583 F.3d at 749)
(internal quotation marks omitted). As a result, our previous resolution of Mr. Hinsons
claim on direct appeal controls the outcome here. Assuming arguendo that counsel was
deficient for failing to object to Detective Hamiltons testimony, that deficiency was not
prejudicial. As we previously found:
We cannot say that the admission of Detective Hamiltons hearsay
testimony affected the outcome of Hinsons trial. In addition to
Hamiltons statement that she had heard a man named Kevin was
Pingrys supplier, Pingry himself testified that Hinson was his supplier,
and his testimony was corroborated by evidence produced during a
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controlled buy. It is unlikely that the officers additional statements on

this issue had any serious impact on the outcome of the trial . . . .
Hinson, 585 F.3d at 1338.
E.
Lastly, Mr. Hinson alleges cumulative error, arguing that counsels errors in the
aggregate prejudiced his defense, even if no single error in isolation did so. This
argument fails as a matter of law. As the term cumulative suggests, [c]umulative-error
analysis applies where there are two or more actual errors. It does not apply . . . to the
cumulative effect of non-errors. Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999)
(quoting Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998)) (internal quotation marks
omitted). Thus, we undertake a cumulative-error analysis only if there are at least two
errors. See United States v. Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009). Here,
Mr. Hinson has established, at most, one error (i.e., counsels failure to object to the
admission of hearsay). Thus, we must refrain from engaging in a cumulative error
analysis. Id.
IV. Conclusion
We conclude that Mr. Hinsons claims of ineffective assistance of counsel fail.
Thus, we are confident that reasonable jurists would agree with the district courts
decision to reject them. Accordingly, we conclude that Mr. Hinson is not entitled to relief

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under 28 U.S.C. 2255. We therefore DENY Mr. Hinson a COA and DISMISS this
matter.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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