United States v. Ndiaye ( 2008 )


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  •                                                                     FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
    
                                                                 December 3, 2008
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                     UNITED STATES COURT OF APPEALS
    
                                  TENTH CIRCUIT
    
    
    
     UNITED STATES OF AMERICA,
    
                 Plaintiff-Appellee,                      No. 08-3191
     v.                                                   (D. Kansas)
     SERIGNE NDIAYE,                             (D.C. Nos. 5:08-CV-4009 and
                                                   5:05-CR-40017-SAC-2)
                 Defendant-Appellant.
    
    
    
                                        ORDER
    
    
    Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit
    Judges.
    
    
    
          Serigne Ndiaye seeks a certificate of appealability (“COA”) to appeal
    
    the district court’s order denying his 28 U.S.C. § 2255 petition to vacate,
    
    modify, or set aside his sentence. In his § 2255 petition, Mr. Ndiaye alleged
    
    ineffective assistance of counsel, a violation of his Sixth Amendment rights.
    
    For substantially the same reasons that the district court set forth in its
    
    well-reasoned order, we deny Mr. Ndiaye’s application for a COA and
    
    dismiss this matter.
                                 I. BACKGROUND
    
          Mr. Ndiaye was one of two defendants named in a single count drug
    
    trafficking indictment that charged possession with the intention to
    
    distribute approximately 1,025 pounds of marijuana. Mr. Ndiaye’s co-
    
    defendant, Ebrima Tunkara, was acquitted of the same charge in a separate
    
    trial conducted a week before Mr. Ndiaye’s trial. A jury found Mr. Ndiaye
    
    guilty on August 18, 2005. Mr. Ndiaye filed a timely motion for a new trial
    
    challenging the sufficiency of the evidence and arguing the court
    
    erroneously admitted evidence that his cellular telephone called and
    
    received calls from two phone numbers of subscribers having Hispanic
    
    surnames in Phoenix, Arizona. The district court denied Mr. Ndiaye’s
    
    motion and sentenced Mr. Ndiaye to a term of 63 months in prison.
    
          Mr. Ndiaye appealed his conviction and sentence. He was represented
    
    by his trial counsel, who filed a brief pursuant to Anders v. California, 
    386 U.S. 738
     (1967), and moved to withdraw from the case. Mr. Ndiaye filed no
    
    response to the Anders brief. Agreeing with the defense counsel that the
    
    appeal did not present any non-frivolous issues, this court dismissed Mr.
    
    Ndiaye’s appeal and granted counsel’s motion to withdraw. United States v.
    
    Ndiaye, 197 Fed. Appx. 780 (10th Cir. 2006).
    
          Mr. Ndiaye then filed a pro se motion under 28 U.S.C. § 2255
    
    asserting ineffective assistance of counsel and asking for an evidentiary
    
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    hearing. The district court determined that the motion was timely, based on
    
    the prison mailbox rule, see Houston v. Lack, 
    487 U.S. 266
    , 276 (1988), but
    
    concluded that Mr. Ndiaye was not entitled to relief. It grouped Mr.
    
    Ndiaye’s ineffective assistance of counsel claims into the following areas:
    
    “(1) failure to secure an interpreter; (2) denial of the defendant’s [] right to
    
    testify; (3) failure to investigate the case and interview the co-defendant;
    
    (4) erroneous advice that the charged offense was a misdemeanor; and (5)
    
    failure to challenge the officers’ false testimony about the defendant’s post
    
    arrest statements.” Rec. doc. 111 at 9; United States v. Ndiaye, Nos. 05-
    
    40017-02-SAC, 08-4009-SAC; 
    2008 WL 2275569
    , at *4 (D. Kan. Jun. 3,
    
    2008).
    
                                    II. DISCUSSION
    
          In order to obtain a COA, Mr. Ndiaye must make “a substantial
    
    showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
    
    Mr. Ndiaye may make this showing by demonstrating that “jurists of reason
    
    could disagree with the district court’s resolution of his constitutional
    
    claims or that jurists could conclude the issues presented are adequate to
    
    deserve encouragement to proceed further.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 327 (2003). “[A] claim can be debatable even though every jurist of
    
    reason might agree, after the COA has been granted and the case has
    
    received full consideration, that [the] petitioner will not prevail.” Id. at
    
                                            -3-
    338.
    
           Here, for substantially the same reasons set forth in the district court’s
    
    order, we conclude that Mr. Ndiaye is not entitled to a COA. As the district
    
    court noted, to establish a claim for ineffective assistance, Mr. Ndiaye must
    
    show both that (1) counsel’s performance was deficient and (2) the deficient
    
    performance prejudiced his defense. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). Counsel’s performance is deficient if it is objectively
    
    unreasonable. See id. at 687-88. Counsel’s 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. A reasonable probability is a probability sufficient to undermine
    
    confidence in the outcome.” Id. at 694. None of Mr. Ndiaye’s ineffective
    
    assistance claims satisfy both the deficient performance and prejudice
    
    prongs of the Strickland analysis.
    
           First, as the district court found, Mr. Ndiaye cannot establish
    
    prejudice based on his counsel’s alleged failure to obtain an interpreter. Mr.
    
    Ndiaye and his counsel differ on when Mr. Ndiaye directed his counsel to
    
    request an interpreter. Nonetheless, when counsel followed Mr. Ndiaye’s
    
    direction to request an interpreter at the sentencing phase, the district court
    
    denied the request. The district court found that Mr. Ndiaye spoke English
    
    and did not need an interpreter. Assuming counsel was deficient for not
    
                                            -4-
    requesting an interpreter earlier, Mr. Ndiaye cannot establish prejudice.
    
    Mr. Ndiaye has not shown that the district court’s decision would or should
    
    have been different if counsel requested an interpreter earlier.
    
          Mr. Ndiaye also cannot establish prejudice based on his failure to
    
    testify. As the district court pointed out, neither of the points to which Mr.
    
    Ndiaye sought to testify were in dispute. Further, the critical evidence
    
    against Mr. Ndiaye involved the conflicting accounts Mr. Ndiaye gave to
    
    police following his arrest. Mr. Ndiaye’s proposed testimony fails to blunt
    
    the effect of this critical evidence against him.
    
          Mr. Ndiaye claims his counsel was deficient for failing to interview
    
    his co-defendant, Mr. Tunkara, and for failing to review Mr. Tunkara’s trial
    
    transcript. This claim lacks the specificity needed to determine whether his
    
    counsel was deficient and whether the deficiency, if any, prejudiced Mr.
    
    Ndiaye. As the district court noted, Mr. Ndiaye has not presented an
    
    affidavit from Mr. Tunkara. Mr. Ndiaye has not addressed to what Mr.
    
    Tunkara would testify or how Mr. Tunkara’s transcript would have assisted
    
    him at trial. The simple fact of a codefendant’s acquittal does not draw into
    
    question the sufficiency of the evidence against a defendant. United States
    
    v. Nichols, 
    374 F.3d 959
    , 970-71 (10th Cir. 2004) (“[A] jury acquittal may
    
    simply be the result of the jury’s ‘mistake, compromise, or lenity,’ rather
    
    than a conclusion that the codefendants are not guilty beyond a reasonable
    
                                            -5-
    doubt.” (quoting United States v. Powell, 
    469 U.S. 57
    , 64 (1984)), judgment
    
    vacated on other grounds by Nichols v. United States, 
    543 U.S. 1113
     (2005).
    
    Mr. Ndiaye has failed to establish both deficient performance and prejudice
    
    on this claim.
    
          Mr. Ndiaye also asks this court to remand the case for an evidentiary
    
    hearing to “call his acquitted Co-Defendant Ebrima Tunkara and procure his
    
    trial transcripts.” Aplt’s Br., at 4. To be entitled to an evidentiary hearing,
    
    Mr. Ndiaye must allege facts that if proven would entitle him to relief.
    
    United States v. Whalen, 
    976 F.2d 1346
    , 1348 (10th Cir. 1992). We review
    
    the denial of an evidentiary hearing for an abuse of discretion. Id. Mr.
    
    Ndiaye has asserted no facts that convince us that he is entitled to relief or
    
    that the district court abused its discretion. Mr. Ndiaye references Mr.
    
    Tunkara’s trial in which Mr. Tunkara took the stand on his behalf and was
    
    acquitted. Aplt’s App. for COA and Supporting Memorandum at 6. Mr.
    
    Ndiaye states that “the only reasonable conclusion was that [Mr. Tunkara]
    
    successfully rebutted the government’s evidence. The same evidence used
    
    against this Petitioner.” Id. While evidence or strategy pursued at Mr.
    
    Tunkara’s trial may have been beneficial to Mr. Ndiaye, these allegations
    
    are insufficient to allow us to conclude that Mr. Ndiaye is entitled to an
    
    evidentiary hearing or that the district court abused its discretion when it
    
    denied one.
    
                                            -6-
          The district court adequately addressed the remaining claims in Mr.
    
    Ndiaye’s petition, including the claims that Mr. Ndiaye was misinformed
    
    about the nature of his charge and that his counsel never challenged false
    
    statements by police. The district court correctly held that these claims
    
    lacked sufficient facts on which to base a cognizable claim, see Hall v.
    
    Bellmon, 
    935 F.2d 1106
    , 1110 (10th Cir. 1991), or that these claims were
    
    otherwise directly refuted by the record. Therefore, these claims are
    
    insufficient to establish ineffective assistance of counsel.
    
          The district court carefully summarized each of Mr. Ndiaye’s
    
    allegations, and, after considering them individually and in the aggregate,
    
    concluded Mr. Ndiaye was not entitled to relief. We have reviewed the
    
    district court’s order, the brief, and the entire record on appeal, and we
    
    agree with the district court’s conclusions.
    
                                  III. CONCLUSION
    
          Accordingly, we DENY Mr. Ndiaye’s application for a COA, and we
    
    DISMISS this matter.
    
    
                                                 Entered for the Court
    
    
    
    
                                                 Elisabeth A. Shumaker
                                                 Clerk of Court
    
    
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