FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3036
(D.C. Nos. 2:14-CV-02475-JWL and
SAMUEL BARAJAS, 2:10-CR-20077-JWL-2)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
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Defendant Samuel Barajas seeks a certificate of appealability (COA) to appeal the
denial of his motion under 28 U.S.C. § 2255 to set aside his conviction and the denial of
his motion for reconsideration. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to
appeal a denial of relief under § 2255). We deny a COA. No reasonable jurist could
have ruled in his favor.
I. BACKGROUND
Defendant was convicted and sentenced to life on drug charges. The conviction
was affirmed on appeal. He then filed in district court a § 2255 motion for relief from his
conviction, contending—among other things—that his pretrial counsel, trial counsel, and
appellate counsel provided ineffective assistance. The district court entered an order
dismissing some of the claims on the pleadings. It appointed counsel for Defendant, held
an evidentiary hearing, and dismissed the remaining claims. Defendant then filed a
motion for reconsideration contending that his attorney for the evidentiary hearing
provided ineffective assistance. The district court denied the motion.
Counsel on appeal has filed an Anders Brief, and Defendant has filed a response.
See Anders v. California, 386 U.S. 738, 744 (1967). Under Anders if an attorney
examines a case and determines that an appeal desired by his client would be “wholly
frivolous,” counsel may “so advise the court and request permission to withdraw.” Id.
Counsel must submit a brief to both the appellate court and the client, pointing to
anything in the record that could potentially present an appealable issue. See id. The
client may then choose to offer argument to the court. See id. If, upon close examination
of the record, the court determines that the appeal is frivolous, it may grant counsel’s
request to withdraw and dismiss the appeal. See id.
II. DISCUSSION
We grant a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the
defendant to show “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). Put differently,
the defendant must show that the district court’s resolution of the constitutional claim
was either “debatable or wrong.” Id.
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We have carefully reviewed Defendant’s claims and determined that they are
undebatably meritless. All his claims that he would have accepted a plea bargain (even
one offered before the evidentiary hearing in the § 2255 proceedings) and pleaded guilty
if not for ineffective assistance of counsel are untenable in light of the district court’s
factual finding that Defendant has consistently and adamantly asserted his innocence and
refused any possible plea agreement. See Dist. Ct. Mem. & Order, Feb. 4, 2016 at 12–18,
R. Vol. 1 at 872–878; Mem. & Order, May 8, 2016 at 2–4, R. Vol. 1 at 826–828. And we
agree with the analysis in the district court’s opinions and the Anders brief showing that
Defendant’s other claims are totally without merit. No reasonable jurist could debate the
propriety of denying relief to Defendant.
III. CONCLUSION
We DENY a COA, DISMISS the appeal, and GRANT counsel’s motion to
withdraw.
Entered for the Court
Harris L Hartz
Circuit Judge
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