FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-2146
                                               (D.C. Nos. CIV-06-940-WJ/KBM
    DAVID DURAN-SALAZAR,                              & CR-02-501-BB)
                                                          (D. N.M.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.



         We granted a certificate of appealability (COA) to consider whether the

district court erred in denying David Duran-Salazar’s request for a hearing on his

claim under 28 U.S.C. § 2255 that he was denied effective assistance of counsel

at his criminal trial. We hold that the court abused its discretion in denying the

request and remand for an evidentiary hearing.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Duran-Salazar was convicted in federal district court of three drug offenses,

including conspiracy to import drugs. His convictions were affirmed on appeal.

United States v. Duran-Salazar, 123 F. App’x 946, 950 (10th Cir. 2005). He then

filed a motion and request for a hearing under § 2255 arguing, among other

things, that his lawyer prevented him from testifying and had he been allowed to

testify, there was a reasonable probability that the outcome of his trial would have

been different.

      The district court denied the motion, including the request for a hearing. 1 It

found “[b]ecause it is possible to resolve the issues on the pleadings, and the

record establishes conclusively that [Duran-Salazar] is not entitled to relief, I find

that an evidentiary hearing is not necessary.” R. Vol. 1, Doc. 11 at 2. The court

proceeded to the merits and concluded that even if Duran-Salazar was improperly

prevented from testifying, 2 he could not prove prejudice:

      I find that there is no possibility that the testimony would have
      effected the outcome of the trial because the substance of that
      testimony was in fact plainly before the jury. All three attorneys
      pursued the same defense, and their coordinated cross-examination
      and presentation of one witness continually impressed upon the




1
      The motion was referred to a magistrate judge whose recommendation was
adopted by the district court.
2
      Duran-Salazar’s lawyer contradicted the contention that he prevented him
from testifying at trial: “Duran Salazar ultimately decided at trial at the close of
the government[’]s case that he would not testify.” R. Supp. Vol. I, Doc. 55 at 2.

                                         -2-
      jurors their position on the facts that they argued both in opening and
      closing statements.

      We granted a COA on the narrow issue of whether Duran-Salazar “is

entitled to an evidentiary hearing on his claim, supported by sworn statements,

that he was denied effective assistance of counsel when his counsel refused to

allow him to testify on his own behalf at trial.” Order, No. 07-2146 (10th Cir.

Dec. 18, 2007).

        Section 2255(b) provides: “[u]nless the motion and the files and records

 of the case conclusively show that the prisoner is entitled to no relief, the court

 shall . . . grant a prompt hearing . . . , determine the issues and make findings

 of fact and conclusions of law[.]” The issue of whether Duran-Salazar is

 entitled to a hearing involves a “two-step inquiry: (1) whether the defendant is

 entitled to relief if his allegations are proved; and (2) whether the district court

 abused its discretion by refusing to grant an evidentiary hearing.” United States

 v. Whalen, 

, 1348 (10th Cir. 1992). As one court has explained,

        [w]e review the district court’s conclusions of law de novo and its
        denial of a motion for an evidentiary hearing [under 28 U.S.C.
        § 2255] for abuse of discretion. Because an error of law is, by
        definition, an abuse of discretion, any error of law in dismissing
        [the] motion for an evidentiary hearing would constitute an abuse
        of discretion.

 Almonacid v. United States, 

, 520 - 21 (7th Cir. 2007) (citations

 omitted); see also United States v. Fagan, 

, 1283 (10th Cir. 1998)

                                           -3-
 (“A district court by definition abuses its discretion when it makes an error of

 law”) (quotation omitted).

      To establish ineffective assistance of counsel, Duran-Salazar must meet a

two-prong test: “[T]he defendant must show that counsel’s performance was

deficient [and] that the deficient performance prejudiced the defense.” Strickland

v. Washington, 

, 687 (1984). Because “[a] criminal defendant has a

constitutional right to testify in his own behalf at trial[,] . . . even when doing so

is suicidal trial strategy[,] [i]f [Duran-Salazar’s] counsel deprived him of the

constitutional right to testify in his own defense[,] [s]uch a dereliction of duty by

counsel would satisfy the first prong of Strickland.” Cannon v. Mullin, 

, 1171 (10th Cir. 2004). “Strickland’s second prong – prejudice – is

established if there is a reasonable probability that defendant’s testimony would

have raised in a juror’s mind a reasonable doubt concerning his guilt.” 

probability is a probability sufficient to undermine confidence in the

outcome.” 

.

      Duran-Salazar’s sworn statement alleged that “[c]ounsel failed to have [me]

testify, when [I] wanted to, [that I] had no agreement with the other defendants.”

R. Vol. I, Doc. 1 at 8. As support, he notes that his lawyer told the jury in his

opening statement that Duran-Salazar would testify on his own behalf, but instead

he rested the case without calling him to the stand. He further argues that in light

of the difficulty the jury had in reaching a verdict, his testimony that he did not

                                           -4-
know the other defendants and was entering the United States to look for work,

could have made a difference. Indeed, on three occasions the jury informed the

district court that it could not reach a unanimous verdict on all of the charges and

the court eventually gave the jury an Allen charge. 3

      It may be that Duran-Salazar cannot ultimately prevail; however, the

allegations in his motion coupled with the difficulty the jury had in reaching a

verdict are sufficient to entitle him to a hearing. “A defendant’s testimony could

be crucial in any trial[.]” Owens v. United States, 

, 59 (1st Cir. 2007).

But rather than guess at the impact his testimony might have had (assuming he

was prevented from testifying), “it is better that it be resolved after an evidentiary

hearing[.]” 

      The dissent argues that no evidentiary hearing was needed because Mr.

Duran-Salazar’s story is “wholly incredible” in light of the government’s

evidence. We note first that this was not the basis on which the district court

denied the motion. The district court found that Mr. Duran-Salazar’s testimony

would not have made a difference because the “substance” of that testimony was

“plainly before the jury” through counsel’s cross-examination of witnesses and

the presentation of one witness. We believe this conclusion understates the

potential impact on a jury, especially in a close case, of a defendant taking the

3
       “[A]n Allen charge is essentially a supplemental instruction given to the
jury and designed to encourage a divided jury to agree on a verdict.” United
States v. Zabriskie, 

, 1147 (10th Cir. 2005).

                                         -5-
stand in his own defense and giving his account of the events under oath, subject

to cross-examination. That is why our precedents state a preference for an

evidentiary hearing in such circumstances. See 

. We are

hesitant to affirm on a fact-intensive alternative ground, on which the district

court did not rely. The “wholly incredible” standard is a high hurdle for an

appellate court to leap on the basis of a cold record. Without knowing more

about the terrain in which the events of this case took place, the practices of

illegals in crossing the border, or the relationships among the co-defendants, we

lack the confidence to label as “wholly incredible” the notion that a group of

illegals might band together for the purpose of crossing the border together, and

might scatter upon confrontation with a border patrol, without necessarily being

in cahoots for other purposes.

      The judgment of the district court is REVERSED and the case is

REMANDED for further proceedings consistent with this order and judgment.


                                                    Entered for the Court


                                                    Michael W. McConnell
                                                    Circuit Judge




                                         -6-
07-2146, United States v. Duran-Salazar

O’BRIEN, Circuit Judge, dissenting:

      I respectfully dissent. 28 U.S.C. § 2255(b) provides that if the motion, files

and records conclusively show that a defendant is not entitled to relief, the court

does not need to grant a hearing. In my view, the record conclusively shows that

Duran-Salazar is not entitled to relief because even assuming he was prevented

from testifying, his allegation that he was not part of a conspiracy is wholly

incredible.

      The district court summarized the government’s evidence at trial as follows:

             Border Patrol Agent . . . Shank testified that in the early
      morning hours, and from an elevated vantage point using infrared
      equipment, he spied five images congregating near a house on the
      Mexico side of the border. The images appeared to him to be men
      carrying backpacks as they began walking toward the border. Shank
      directed other agents toward the moving images so the agents could
      intercept them in a gully after they crossed the border.

             The endeavor was complicated by a moving train that blocked
      the other agents’ view and because some of the images scattered and
      ran. Eventually five people were arrested. One was located right
      next to six bags filled with drugs. He was tried with [Duran-Salazar]
      and another person who were found at least one hundred, and perhaps
      as far as two hundred, yards away from the bags. Shank testified that,
      although he did not use the record function on the infrared equipment,
      the images on the screen were never out of his sight.

R. Vol. 1, Doc. 11 at 5-6.
      In the face of this evidence, Duran-Salazar alleged in his motion:

      In this case, no evidence exists that any conspiracy to violate laws,
      together, exists. Evidence shows, to [the] contrary, the parties lived
      in different locations, and just happened to be at the same location, to
      enter the United States at the same time.
      Counsel failed to have [me] testify, when [I] wanted to, [that I] had
      no agreement with the other defendants. . . .
      Counsel further never proved the very issue he r[aised], that no
      agreement existed. In fact, the matter was not even addressed by
      counsel . . . even though this is what the defense counsel claimed.

at 8-9 (emphasis added).

      The district court acknowledged that Duran-Salazar’s lawyer told the jury in

opening statement that “his client would be testifying and telling them how he had

crossed the border illegally as he had done before looking for construction work,

did not know the other defendants, and was just at the wrong place at the wrong

time.” 

1 at 30 (quotation marks omitted). Nonetheless, the court found

“[b]ecause it is possible to resolve the issues on the pleadings, and the record

established conclusively that [Duran-Salazar] is not entitled to relief, I find that an

evidentiary hearing is not necessary.” 

In particular, the court found no

prejudice in that “there is no possibility that the testimony would have effected the

outcome of the trial because the substance of that testimony was in fact plainly

before the jury.” 

      In reviewing the sufficiency of § 2255 motion, we do not need to accept as

true allegations that are “unsupported by specifics [or] wholly incredible in the

face of the record.” United States v. Estrada, 

, 1307 (10th Cir.

                                          -2-
1988) (quotation marks omitted); see also Owens v. United States, 

, 57

(1st Cir. 2007) (holding that “[i]f a district court dismisses a § 2255 claim without

holding an evidentiary hearing, we take as true the sworn allegations of fact set

forth in the petition unless those allegations are merely conclusory, contradicted

by the record, or inherently incredible”) (quotation marks omitted). Even if we

overlook the lack of detail in Duran-Salazar’s motion, he is not entitled to a

hearing because the allegation that he “had no agreement with the other

defendants,” R. Vol. 1, Doc. 1 at 8, is wholly incredible.

      Agent Shank testified that using night-vision equipment, he observed five

people assemble and cross the border with backpacks. When they were confronted

by border guards four of them ran, ditching their packs with a single defendant.

Although Duran-Salazar was arrested one to two hundred yards away from the

defendant left holding the packs, the witness testified that the suspects were never

out of sight. The notion that five people crossed the border with packs full of

drugs and ditched them with the same person in the absence of an agreement is

“wholly incredible in the face of the record.” 

. Because

the record conclusively establishes that Duran-Salazar is not entitled to relief, the

district court did not err in denying his request for an evidentiary hearing.

      The majority says “[W]e lack the confidence to label as “wholly incredible”

the notion that a group of illegals might band together for the purpose of crossing

the border together, and might scatter upon confrontation with a border patrol,

                                          -3-
without necessarily being in cahoots for other purposes.” The statement is telling

more for what it omits than for what it says. It fails to take into account the six

backpacks containing drugs. Duran-Salazar might, coincidently and innocently,

have been crossing the border with a small group of drug smugglers yet

unconnected with them and unaware of their purposes. While theoretically

possible it would, indeed, be a wholly incredible coincidence.




                                          -4-