FILED
United States Court of Appeals
Tenth Circuit
July 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3353
v. (Case No. 07-CV-02479-CM)
(D. Kan.)
RUBEN URIAS-BOJORQUEZ,
Defendant-Appellant.
ORDER *
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
Appellant, a federal prisoner represented by appointed counsel, seeks a
certificate of appealability to appeal a ruling made by the district court in an
evidentiary hearing on Appellant’s § 2255 habeas petition. Specifically,
Appellant claims that the court erred by refusing to allow habeas counsel to
present testimony regarding a potential claim of ineffective assistance of counsel
that had not been raised in Appellant’s habeas petition but had come to light in
the course of counsel’s investigation.
A jury found Appellant guilty of possessing 50 grams or more of
*
This order is not binding precedent, except under the doctrines of law of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.
methamphetamine with intent to distribute, and he was sentenced to 200 months
in prison. His conviction was affirmed by this court on direct appeal. See United
States v. Urias-Bojorquez, 205 F. App’x 706 (10th Cir. 2006). In his habeas
petition, Appellant claimed that his trial counsel provided ineffective assistance
by (1) failing to communicate a proposed plea agreement, (2) failing to advise
him of his right to testify, and (3) failing to challenge the jury selection process.
The district court denied § 2255 relief as to the second and third claims but
ordered an evidentiary hearing and appointed counsel for the first claim.
Prior to the evidentiary hearing, habeas counsel investigated trial counsel’s
representation of Appellant. In the course of this investigation, trial counsel
allegedly informed the investigator that he believed he had erred by failing to call
Appellant’s co-defendant to offer exculpatory testimony at Appellant’s trial. At
the evidentiary hearing, habeas counsel sought to elicit testimony from trial
counsel about this issue, but the court sustained the government’s objection and
held that this line of questioning was not relevant to the issue before the court.
The hearing proceeded with evidence regarding the original claim presented in the
habeas petition, which the court subsequently denied.
Appellant seeks to appeal only the district court’s refusal to allow habeas
counsel to present testimony regarding trial counsel’s failure to call Appellant’s
co-defendant to testify. To obtain a certificate of appealability, Appellant must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
-2-
2253(c)(2). In order to meet this burden, he 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).
As the government pointed out at the hearing, Appellant never sought to
amend the pleadings to raise this new issue, nor did he inform the court or the
government that he intended to use the evidentiary hearing to explore issues other
than the ones previously raised in the habeas petition. Furthermore, on the merits
of the potential claim of ineffective assistance, the record reflects that trial
counsel attempted to present exculpatory testimony from Appellant’s co-
defendant at Appellant’s sentencing proceeding but was unable to do so because
the co-defendant asserted his Fifth Amendment rights, suggesting that the co-
defendant would not likely have testified at Appellant’s trial in any event. Under
these circumstances, we conclude that reasonable jurists would not debate
whether the district court abused its discretion by denying the admission of the
contested evidence, nor would they debate whether the issues presented deserved
encouragement to proceed further. We therefore DENY Appellant’s request for a
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certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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