FILED
United States Court of Appeals
Tenth Circuit
March 18, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-2193
v. (D.C. No. CIV-05-391-JAP-LAM)
(D. N.M.)
EVANGELIO ALVAREZ,
Defendant-Appellant.
ORDER *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Petitioner seeks a certificate of appealability to appeal the district court’s
denial of his § 2255 habeas petition. Petitioner was charged with one count of
conspiracy to possess with intent to distribute fifty grams or more of cocaine base
and one count of possession with intent to distribute more than five grams of a
cocaine base. The jury convicted him on the conspiracy count, but was unable to
reach a unanimous verdict on the possession count. The court declared a mistrial
as to the possession count and sentenced Petitioner to 151 months in prison on the
conspiracy count. We affirmed Petitioner’s conviction and sentence on direct
*
This order is not binding precedent, except under the doctrines of law of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.
appeal. United States v. Alvarez, 75 F. App’x 745, 746 (10th Cir. 2003).
In his habeas petition, Petitioner claimed, inter alia, ineffective assistance
of counsel based on his trial attorney’s alleged failure to inform him of a
favorable plea offer. The district court ordered that counsel be appointed to
represent Petitioner on this claim. The magistrate judge conducted an evidentiary
hearing at which Petitioner, his trial counsel, trial counsel for one of his co-
defendants, and an Assistant United States Attorney testified. The magistrate
judge concluded that Petitioner’s testimony was not credible and that trial
counsel’s testimony that he did discuss the offer with Petitioner was credible and
corroborated by the evidence.
The district court, after considering Petitioner’s objections, reading the
transcript of the hearing, and reviewing the record, agreed with the magistrate
judge’s conclusion that Petitioner’s allegations were not credible. The court
concluded that the weight of the evidence supported the magistrate judge’s
conclusion that trial counsel indeed conveyed the terms of the plea offer to
Petitioner. 1 The court therefore held that Petitioner had not satisfied the first
prong of the Strickland test, see Strickland v. Washington, 466 U.S. 668, 687
(1984), because he had not demonstrated that his attorney’s conduct fell below a
reasonable standard of professional conduct.
1
The court specifically considered whether the terms of the June 27th plea
offer at issue in this case were conveyed to Petitioner, noting that the previous
plea offer had differed in important respects from this offer.
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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. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In assessing Petitioner’s claims,
“[w]e review the district court’s legal conclusions de novo and its factual findings
under the clearly erroneous standard.” English v. Cody, 241 F.3d 1279, 1282
(10th Cir. 2001) (internal quotation marks omitted) (alternation in original).
Applying this standard of review, we conclude that Petitioner is not entitled
to a certificate of appealability. Although we note that some contradictory
evidence was introduced at the evidentiary hearing, we are convinced that
reasonable jurists would not debate whether the district court clearly erred in
finding that counsel conveyed the terms of the plea offer to Petitioner and that
Petitioner’s allegations to the contrary were not credible. We are also convinced
that reasonable jurists would not debate the district court’s conclusion that
Petitioner failed to demonstrate ineffective assistance of counsel.
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, and the record on appeal. Nothing in these materials convinces us
that reasonable jurists could debate whether the district court’s rulings were
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correct. Accordingly, for substantially the reasons set forth by the district court,
we DENY Petitioner’s request for a certificate of appealability and DISMISS the
appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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