F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 24 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 98-5195
v. (D.C. No. 97-CV-768-K)
JOSE HERNANDEZ DELEON, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining Defendant-Appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Defendant-Appellant Jose Hernandez DeLeon, proceeding pro se, appeals
the district court’s dismissal of his motion to vacate, set aside, or correct sentence
filed pursuant to 28 U.S.C. § 2255.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
On May 17, 1996, Defendant pleaded guilty to distributing marijuana in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He is currently serving a
136-month sentence to be followed by eight years’ supervised release. Although
Defendant did not directly appeal his sentence, on August 21, 1997, he filed this
§ 2255 motion in which he claimed that the government breached its plea
agreement and that he was denied effective assistance of counsel. His ineffective
assistance claim alleged that (1) counsel failed to investigate both the case
generally and specific witnesses who would have supported his alibi; (2) counsel
coerced and threatened him into pleading guilty; (3) counsel failed to object to a
two-point increase based on firearm possession; and (4) counsel failed to object
and prove that Defendant was not a manager or supervisor of criminal activities.
The district court denied his motion concluding that, although Defendant had
voluntarily and knowingly waived his rights to appeal and to seek collateral
review, it would reject Defendant’s claims in any event because they lacked merit.
See R., Vol. 1, Doc. 69 at 11, 14. The court subsequently denied Defendant’s
motion for a certificate of appealability.
To appeal the district court’s dismissal of his § 2255 motion, Defendant
must obtain a certificate of appealability. We may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). On appeal, Defendant raises
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essentially the same issues, arguing that the resolution of his ineffective
assistance claims is “[s]urely . . . debatable among jurists of reason and could be
decided in a different manner.” Appellant’s Motion for C.O.A. at 8. He also
contends that his claim that the government breached his plea agreement should
be remanded for an evidentiary hearing and for expanded discovery.
Having construed Defendant’s pro se pleadings liberally, see Riddle v.
Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996), and having thoroughly
reviewed his brief, his motion for a certificate of appealability, and the record, we
conclude that Defendant has failed to make the requisite substantial showing of
the denial of a constitutional right. The district court correctly determined that
the issues raised by Defendant are not debatable among jurists, nor could a court
resolve the issues in a different manner. As a result, we deny him a certificate of
appealability and dismiss this appeal. 1
DENIED and DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge
Because the district court granted Defendant’s motion to proceed in forma
1
pauperis on appeal, we need not address his motion to this court to proceed
without prepayment of costs or fees. Title 28 U.S.C. § 1915 prescribes the
method by which Defendant shall pay costs and fees.
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