FILED
United States Court of Appeals
Tenth Circuit
November 29, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-8073
v. (D.C. Nos. 1:09-CV-00233-NDF and
2:05-CR-00104-WFD-1)
JESUS ALFONSO LEGARDA, (D. Wyo.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Defendant-Appellant Jesus Alfonso Legarda, a federal inmate appearing pro
se, seeks to appeal from the district court’s denial of his motion to vacate, set
aside, or correct sentence. 28 U.S.C. § 2255; 1 R. 208-220. To proceed on
appeal, Mr. Legarda must obtain a certificate of appealability (“COA”), requiring
that he make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This includes a showing that “reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we find such a showing
lacking, we deny a COA and dismiss the appeal.
In March 2006, Mr. Legarda pled guilty to participation in a conspiracy to
distribute methamphetamine; in March 2008 he was sentenced to prison for 210
months. His counsel filed an Anders brief on appeal; we dismissed the appeal for
want of a non-frivolous ground and allowed counsel to withdraw. United States
v. Legarda, 339 F. App’x 870, 871 (10th Cir. July 27, 2009). In so doing, we
indicated that the only possible basis for an appeal was that the plea was invalid
or involuntary. But we rejected such a claim, stating:
In particular, the plea transcript indicates that Mr. Legarda
entered his plea knowingly, intelligently, and voluntarily pursuant to
the requirements of Rule 11 of the Federal Rules of Criminal
Procedure. During the plea colloquy prior to the entry of his guilty
plea, the court specifically established that Mr. Legarda was
competent, that he was satisfied with his counsel, that he was
pleading without coercion, that he was aware of the charges against
him and the range of punishment, and that he knew what trial rights
he waived by pleading guilty.
Id. This constitutes a formidable barrier to Mr. Legarda’s present efforts.
Mr. Legarda first contends that his lawyer failed to object to the sentence
length (which was not, as he had hoped, at the low end of the range); and second,
that his lawyer permitted him to plead guilty without seeking a competency
evaluation to ensure that he was fit to enter a plea and to test whether he was
entitled to a downward departure based on diminished capacity. To succeed on an
ineffective assistance claim, Mr. Legarda must demonstrate deficient performance
and prejudice. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
First, Mr. Legarda argues that the sentencing court stated on the record that
the guideline range was 188 to 235 months, and that in the plea agreement the
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government agreed to recommend a sentence at the low end of the range; yet he
was sentenced, without explanation, to 210 months, and his lawyer inexplicably
failed to object. Aplt. Br. 14-19. We note that counsel did alert the district court
that the government had agreed to recommend the low end of the guideline range,
but the district court, applying the advisory guidelines, chose not to follow that
course. Sent. Tr. 149, 156. Regardless, this claim was not raised below and is
waived.
Second, as for counsel’s failure to move for a competency exam, this claim
is not reasonably debatable. We have reviewed the sentencing transcript and the
district court’s disposition. 1 R. 218-219. Before his plea Mr. Legarda received
two separate evaluations—by Dr. Kahn, his expert, and by Dr. Morrow, the
government’s expert. Both rejected the contention that Mr. Legarda’s epilepsy
diminished his ability to understand the wrongfulness of his acts or to voluntarily
plead guilty. Sent. Tr. 35-42. So did the court. Id. at 150. We have previously
concluded that the record supports a plea that was knowing and voluntary. We
see no serious argument that counsel failed in his duties under the Sixth
Amendment when he chose not to seek a competency evaluation.
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We DENY a COA, DENY in forma pauperis (‘IFP”) status, and DISMISS
the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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