FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

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


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 06-4298
                                              (D.C. Nos. 2:05-CV-494-BSJ and
 DARRELL DEAN PROWS, also                            2:04-CR-102-BSJ)
 known as Darrell D. Prows, also                          (D. Utah)
 known as D. Dean Prows,

          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 court’s 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          This Order and Judgment is not binding precedent, except under the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. Prows’s filings liberally, 1 we hold that no reasonable jurist could conclude

that the district court’s ruling was incorrect. See Slack v. McDaniel, 

, 484 (2000). Accordingly, we DENY Mr. Prows’s 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, 

(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. Attorney’s 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.




      1
           Because Mr. Prows is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 

, 520-21 (1972); Howard v.
U. S. Bureau of Prisons, 

, 815 (10th Cir. 2007).

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                                 II. DISCUSSION

      In reviewing a denial of a § 2255 motion, we review the district court’s

legal rulings de novo and its factual findings for clear error. United States v.

Orange, 

, 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. 

ineffective assistance, a defendant must show that his

attorney’s performance was deficient and that the deficient performance

prejudiced the defendant. Strickland v. Washington, 

, 687 (1984). A

failure to make either of these showings is dispositive. 

.

To demonstrate that the performance was deficient, the defendant must show that,

considering all the circumstances, “counsel’s representation fell below an

objective standard of reasonableness.” 

.

      Counsel’s performance “must have been completely unreasonable, not

merely wrong.” Barkell v. Crouse, 

, 689 (10th Cir. 2006) (quoting

Boyd v. Ward, 

, 914 (10th Cir. 1999)). This review of counsel’s

performance is “highly deferential.” 

. To demonstrate

that the performance was prejudicial, “[t]he 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.” 

The reasonable probability

must be “sufficient to undermine confidence in the outcome.” 

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. Prows’s attorney’s 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 government’s 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. 

. “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” 

The fact that Mr. Prows’s 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 attorney’s decisions were so completely

unreasonable as to constitute ineffective assistance. Mr. Prows’s assertions that

his attorney was “mentally incompetent” are not enough to support his claims. Cf.

Hall v. Bellmon, 

, 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. Prows’s 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. Prows’s attorney’s professional judgment.

      Even if we were to assume that Mr. Prows’s attorney’s 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

. “It is not enough for the defendant to show that the

errors had some conceivable effect on the outcome of the proceeding.” 

As the district court correctly noted, none of the arguments Mr. Prows believes

should have been made would have undermined the government’s proof as to the




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essential elements of mail fraud. Accordingly, Mr. Prows cannot meet the second

element of the Strickland standard. 2

      For the reasons stated above, Mr. Prows’s request for a COA is DENIED

and his appeal is DISMISSED.



                                        Entered for the Court



                                        Jerome A. Holmes
                                        Circuit Judge


      2
             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.
Prows’s filing at any time prior to or in its order denying Mr. Prows’s § 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 

. See Coronado v. Ward, 

, 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.” 

. Mr.
Prows cannot demonstrate that his appellate attorney’s concession had such an
adverse impact. Our decision to remand for resentencing in the government’s
appeal was not based on Mr. Prows’s counsel’s concession. Rather, we stated,
“We come to the same conclusion [as Mr. Prows’s attorney and the government]
because the 1984 Sentencing Reform Act repealed the prior statutory authority to
stay sentences.” 

. Accordingly, Mr. Prows is unable
to meet the Strickland standard.

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