United States v. Garcia

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 7, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,
Plaintiff–Appellee, No. 06-8052
v. (D.C. No. 04-CV-295-W FD)
AM ADO GARCIA , (D . W yo.)
Defendant–Appellant.

OR DER *

Before KELLY, M cKA Y, and LUCERO, Circuit Judges.

In this pro se 28 U.S.C. § 2255 prisoner appeal, Petitioner challenges his

conviction by a jury on three drug charges. His conviction was affirmed on direct

appeal by a panel of this court in United States v. Garcia, 71 Fed. App’x 781

(10th Cir. 2003) (unpublished). In his § 2255 petition, he raised several claims of

ineffective assistance of counsel relating to his trial and appeal. The district court

determined that Petitioner was not entitled to relief on any of his claims, and it

denied his § 2255 petition and his request for a certificate of appealability. The

trial court’s thorough Order, filed June 6, 2006, fully and correctly sets forth why

*
This order is not binding precedent, except under the doctrines of law of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.
it dismissed the petition. W e see no reason to repeat that effort. 1

To obtain a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, Petitioner 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).

W e have carefully reviewed Petitioner’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s filing raises an issue which meets our standard for the grant of a

certificate of appealability. For substantially the reasons set forth by the district

court, we D EN Y Petitioner’s request for a certificate of appealability and

DISM ISS the appeal. W e do, however, GRANT Petitioner’s motion for leave to

proceed on appeal in form a pauperis.

Entered for the Court

M onroe G. M cKay
Circuit Judge

1
Petitioner requested that we hold our decision in abeyance pending the
Supreme Court’s decision in Burton v. Stewart, 127 S. Ct. 793 (2007). The
Supreme Court subsequently ordered the habeas petition in that case dismissed for
lack of jurisdiction. Id. Accordingly, that decision has no impact on the instant
petition.