F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 23, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-1311
v. District of Colorado
EM ILIO ESC AM ILLO , (D.C. No. 04-CV-2201 W DM and
03-CR-69 W DM )
Defendant-Appellant.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Emilio Escamillo, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) that would allow him to appeal the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C. §
2253(c)(1)(B). Because we conclude that M r. Escamillo has failed to make “a
substantial showing of the denial of a constitutional right,” we DENY his request
for a COA and dismiss the appeal. Id. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. Background
M r. Escamillo was charged with four counts of violating federal law: one
count of conspiracy to distribute 500 grams or more of a cocaine mixture (Count
One); one count of possessing with intent to distribute cocaine (Count Two); one
count of using and carrying a firearm in furtherance of drug trafficking (Count
Four); and one count of being a felon in possession of a firearm (Count Five). H e
pleaded guilty to the two drug counts and a jury acquitted him of the remaining
firearm charges. M r. Escamillo was sentenced to 60 months’ imprisonment on
each of the drug counts, the sentences to be served concurrently. In ascertaining
the sentencing guidelines range, the district court found that M r. Escamillo
possessed a firearm in connection with the offense, and therefore increased his
base offense level by two levels. Even with the firearm enhancement, M r.
Escamillo received the mandatory statutory minimum sentence as to both Count
One and Count Two. M r. Escamillo, through his attorney, filed a motion to
amend the judgment to remove the firearm enhancement even though it would not
reduce his sentence. The district court denied the motion. M r. Escamillo did not
appeal.
On October 22, 2004, M r. Escamillo, represented by counsel, filed a
M otion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody. In the motion, M r. Escamillo argued that the two-
level increase for possession of a firearm violated Blakely v. Washington, 542
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U.S. 296 (2004). Subsequently, on M arch 1, 2005, M r. Escamillo sent a letter to
the district court judge complaining that M r. Escamillo’s attorney did not include
an issue that M r. Escamillo had directed his attorney to raise in the § 2255
motion. In the letter, M r. Escamillo stated, “I was denied my right to a first
appeal based on erroneous information and that under the circumstances my right
to a first direct appeal should be reinstated. Thus far my attorney has refused to
present this ground because he believes it to be frivolous.” R. Doc. 136. This
letter was provided only to the district court, not to government counsel. The
district court ordered the government to respond to M r. Escamillo’s § 2255
motion. In a second letter to the district court, dated M arch 21, 2005, M r.
Escamillo thanked the district court judge for ordering the government to respond
to his § 2255 motion. M r. Escamillo also noted his concern that the government
was not instructed to respond to his argument that he was denied the right to a
direct appeal. He informed the court:
I do not want the government to later claim that I did not raise the
matter of my being denied my right to a first appeal. I ask the C ourt
to “liberally” construe my letter to the Court dated M arch 1, 2005 as
a supplement to the pending Section 2255 motion as allowed by Rule
15(a) of the Federal Rules of Civil Procedure and as provided by
Haines v. Kerner, 404 U.S. 519 (1972).
R. Doc. 138.
In denying M r. Escamillo’s § 2255 motion, the district court held that
Blakely did not apply retroactively to convictions that were final at the time
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Blakely was decided. The court did not address M r. Escamillo’s claim, raised in
his ex parte letters to the district court, that he was denied the right to a direct
appeal. The district court denied M r. Escamillo’s request for a COA. M r.
Escamillo now asks this Court to grant his request for a COA or to order a
summary remand to the district court because he was denied the right to a direct
appeal.
II. Discussion
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to make such a showing, a petitioner must demonstrate that “reasonable jurists
could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal
quotation marks omitted).
W e turn first to M r. Escamillo’s request that we summarily remand this
case back to the district court because he was denied the opportunity for a direct
appeal. This Court will not address an issue raised for the first time on appeal.
United States v. M oore, 22 F.3d 241, 243 n.3 (10th Cir. 1994). Anticipating this
result, M r. Escamillo claims that his M arch 1, 2005 letter, which informed the
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court of his lawyer’s failure to argue that he was denied a direct appeal, was
sufficient to amend his § 2255 motion. M r. Escamillo correctly asserts that
Federal Rule of Civil Procedure 15(a) provides liberal standards for amending a
pleading: before a responsive pleading is filed a party may amend a pleading at
any time without leave of court, and after a responsive pleading is filed leave to
amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a); see
also Rutledge v. United States, 230 F.3d 1041, 1051 (7th Cir. 2000) (“Until a
final ruling has been issued, a district court must consider a petitioner’s request to
amend his § 2255 motion, though the court need not grant the requested
amendments.”). Thus, if M r. Escamillo properly sought to amend his § 2255
petition to include a claim that he was denied the right to a direct appeal, the
district court was required, at a minimum, to consider his request to amend.
However, M r. Escamillo’s letters to the district court were not motions to
amend his initial § 2255 petition. His private M arch 1, 2005 letter to the judge
was a “complaint” that his attorney did not include an issue that he wished to
raise. R. Doc. 136. It was not styled as a motion to amend and did not ask the
court to amend the earlier petition. His second letter, dated M arch 21, 2005, did
ask the court to “‘liberally’ construe [his previous letter] as a supplement to the
pending Section 2255 motion as allowed by Rule 15(a) of the Federal Rules of
Civil Procedure.” R. Doc. 138. Like the first letter, however, the second letter
was not styled as a motion to amend and was not provided to opposing counsel.
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Because M r. Escamillo w as represented by counsel when he submitted the letters,
the rule that pro se pleadings are interpreted liberally was inapplicable to him.
See Rutledge, 230 F.3d at 1052 (finding that a habeas petitioner who was
represented by counsel was not entitled to have the district court liberally
construe letters mailed to the district court as motions to amend). M r. Escamillo
was aware that his lawyer was not following his instructions with respect to that
claim. M r. Escamillo w as therefore confronted w ith several options: he could ask
his lawyer for instructions on how to file a pro se supplemental brief, he could
find a new lawyer who would follow his requests, or he could fire his lawyer and
proceed pro se. Because M r. Escamillo chose to retain his lawyer despite the
lawyer’s failure to follow M r. Escamillo’s instructions, M r. Escamillo was not
entitled to have the district court liberally construe his letter as a motion to
amend. Accordingly, there was no motion to amend before the district court, the
district court did not err in not considering M r. Escamillo’s claim that he was
denied a direct appeal, and we will not consider the issue because it was raised
for the first time on appeal.
Next, M r. Escamillo argues that his conviction was “obtained by a plea of
guilty without understanding the consequences of his plea.” O pening Br. 11. M r.
Escamillo did not present this issue to the district court in his initial § 2255
petition. Because he failed to raise this issue in the district court, we will not
consider it on appeal. M oore, 22 F.3d at 243 n.3.
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Finally, he contends that the sentencing court’s decision to increase his
base offense level for possession of a firearm violated the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). However, neither
Booker nor Blakely apply retroactively to cases on collateral review. United
States v. Bellam y, 411 F.3d 1182, 1186 (10th Cir. 2005). Because his conviction
became final before either decision was issued, M r. Escamillo cannot challenge
his sentence under either Booker or Blakely.
Accordingly, we D EN Y Emilio Escamillo’s request for a COA and
DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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