F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 31, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA
Plaintiff–Appellee, No. 06-7050
v. (D.C. No. 05-CV-389-W )
FR AN CISC O JA V IER MA D R ID- (E.D. Okla.)
M ON GE,
Defendant–Appellant.
OR DER
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
This is a 28 U.S.C. § 2255 appeal in which Appellant Francisco Javier
M adrid-M onge is represented by counsel appointed under the provisions of the
Criminal Justice Act. Appellant pleaded guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18
U.S.C. § 2, and was sentenced to 120 months’ imprisonment, the m andatory
minimum under § 841(b)(1)(A). Appellant then filed the instant motion with the
district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255
in which he argued that (1) the denial of effective assistance of counsel at
sentencing precluded consideration of the safety valve provision contained in 18
U.S.C. § 3553(f); (2) his sentence was imposed based on facts not found by the
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jury and calculated based on mandatory application of the Sentencing Guidelines;
and (3) the denial of effective assistance of counsel prevented direct appeal.
The district court denied A ppellant’s first two claims and referred the third
to a magistrate judge in order to conduct an evidentiary hearing. The magistrate
judge conducted the hearing and issued a report and recommendation suggesting
denial of Appellant’s third claim, which the district court adopted in a separate
order.
Appellant advances to this court the same arguments he made below on the
first and third claims; he omits the second claim. However, our consideration of
these claims is predicated on our issuance of a certificate of appealability
(“COA”). Appellant is entitled to a COA only if he makes a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so,
Appellant must demonstrate “that reasonable jurists could debate whether (or, for
that matter, agree that) 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, 484 (2000) (quotation
omitted). In other w ords, the applicant must show that the district court’s
resolution of the constitutional claim was either “debatable or wrong.” Id.
The district court thoroughly evaluated Appellant’s claim that ineffective
assistance of counsel rendered him ineligible for safety valve relief by reviewing
the entire record, including the transcript of the sentencing hearing. W e agree
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with the district court that the sentencing hearing transcript “clearly shows” that
Appellant’s counsel raised the application of this provision, but that Appellant
rejected several opportunities to take advantage of this provision by refusing to
offer information to the government. 1
The district court also ensured that Appellant’s third claim, concerning his
inability to perfect an appeal due to ineffective assistance of counsel, was
thoroughly examined. The magistrate judge conducted an evidentiary hearing at
which it became apparent that the plea agreement was fully explained to
Appellant and that Appellant’s expectations of appeal w ere unjustified.
Appellant presents no evidence of his inability to understand and appreciate the
consequences of his guilty plea. M oreover, the magistrate judge recognized that
even if an appeal had been preserved, no non-frivolous grounds for appeal would
have existed given the district court’s rejection of Appellant’s other two
arguments.
After carefully reviewing the parties’ briefs, the district court’s disposition,
the m agistrate judge’s report and recommendation, and the record on appeal, we
conclude that no reasonable jurist could conclude that Appellant’s counsel was
ineffective under Strickland. A ccordingly, as Appellant has failed to show a
1
Appellant bears the burden of establishing that his “counsel’s
representation fell below an objective standard of reasonableness,” Strickland v.
Washington, 466 U.S. 668, 688 (1984), and “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different,” id. at 694.
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denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2), we must
D EN Y Appellant’s request for a certificate of appealability and DISM ISS the
appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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