United States v. Delgado-Ornelas

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-3053
(D.C. Nos. 6:15-CR-10141-EFM-1
FERNANDO DELGADO- and 6:16-CV-01422-EFM)
ORNELAS, (D. Kan.)

Defendant - Appellant.
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ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
DISMISSING THE APPEAL
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Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________

This appeal involves the denial of relief under 28 U.S.C. § 2255. The

threshold issue is whether the defendant has justified a certificate of

appealability. We answer “no” and decline to issue a certificate of

appealability. This decision requires us to dismiss the appeal.

The defendant, Mr. Fernando Delgado-Ornelas, wants to appeal a

conviction based on ineffective assistance of counsel. Mr. Delgado was

charged in federal court with illegal reentry after removal based on a

conviction for an aggravated felony. After conferring with counsel, Mr.

Delgado pleaded guilty. The district court accepted the plea and imposed a
prison term of 37 months. According to Mr. Delgado, his attorney provided

ineffective assistance by promising a lower sentence. The district court

rejected this claim, reasoning that the plea colloquy belied the alleged

promise and that the alleged ineffectiveness would not have been

prejudicial.

To appeal this ruling, Mr. Delgado-Ornelas needs a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(B). Such a certificate may issue only

if Mr. Delgado-Ornelas has made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537

U.S. 322, 336 (2003). Where, as here, the district court has dismissed a

petitioner’s § 2255 claim on the merits, the petitioner must show that the

district court’s conclusion was subject to reasonable debate. Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

In our view, the district court’s reasoning is not subject to reasonable

debate. As a result, we decline to issue a certificate of appealability. And

in the absence of a certificate of appealability, we must dismiss the appeal.

Entered for the Court

Robert E. Bacharach
Circuit Judge

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