FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 17, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-2092
(D.C. Nos. 2:11-CV-00990-MCA-ACT
MANUEL LOPEZ, and 1:08-CR-02968-MCA-1 )
(D. N. M.)
Defendant – Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY * 0F
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
Manuel Lopez, a federal prisoner, seeks a certificate of appealability (“COA”) to
challenge the district court’s order denying his 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal
a “final order in a proceeding under section 2255”). Exercising jurisdiction under 28
U.S.C. § 1291, we dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the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.
I. BACKGROUND
In December 2008, New Mexico State Police Sergeant Nick Ramos stopped Mr.
Lopez’s vehicle for speeding west of Albuquerque, New Mexico. Mr. Lopez was asked
to exit his vehicle. After placing his hands in his pockets, he stated he had a knife in his
pocket. Sergeant Ramos conducted a pat-down of Mr. Lopez and felt a cylindrical
object. Mr. Lopez stated they were pills.
Sergeant Ramos removed Mr. Lopez’s knife and asked him to empty his pockets.
When Mr. Lopez did so, Sergeant Ramos noticed that his right hand was curled. Mr.
Lopez backed up when asked what was in his hand. Thinking that Mr. Lopez was about
to flee, Sergeant Ramos grabbed Mr. Lopez and braced him against the police cruiser.
Sergeant Ramos then thought Mr. Lopez attempted to place his hand near his
mouth to ingest something. Sergeant Ramos attempted to choke Mr. Lopez to prevent
him from swallowing, and Mr. Lopez was handcuffed. A cylindrical object was retrieved
from Mr. Lopez’s shirt pocket. Police discovered methamphetamine in the container, and
they discovered more methamphetamine in Mr. Lopez’s trunk after a K-9 alert.
Mr. Lopez was arrested and charged with possessing with intent to distribute 500
grams or more of methamphetamine. He moved to suppress the methamphetamine
evidence, and the district court held a hearing at which Sergeant Ramos testified. After
viewing video of the stop, the district court found that Mr. Lopez had not placed his hand
near his mouth. Nonetheless, the court accepted as credible Sergeant Ramos’s testimony
that he believed, from his perspective behind Mr. Lopez, that Mr. Lopez had placed his
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hand near his mouth and was ingesting something. The court held that Sergeant Ramos
could then constitutionally take and open the cylindrical container from Mr. Lopez’s shirt
pocket “to ensure [Mr. Lopez’s] safety and to anticipate a possible overdose.” Appx.,
Vol. 1 at 21. The court denied Mr. Lopez’s motion to suppress.
On December 7, 2009, Mr. Lopez signed a written plea agreement, which reserved
his right to appeal the denial of the motion to suppress. Judgment was entered on
February 24, 2010, and Mr. Lopez appealed. On August 4, 2010, the Government
provided Mr. Lopez with information concerning Sergeant Ramos’s disciplinary history
and the credibility of his testimony in other proceedings. He moved for the voluntary
dismissal of his appeal, and the Tenth Circuit granted his motion on November 8, 2010.
On November 7, 2011, Mr. Lopez filed a § 2255 motion arguing that, under Giglio
v. United States, 405 U.S. 150 (1972), the Government was required and had failed to
disclose in a timely manner the information regarding Sergeant Ramos’s disciplinary
history and credibility. A magistrate judge recommended denying the § 2255 motion on
two separate bases, which the federal district court adopted.
First, the magistrate judge noted that Mr. Lopez offered no explanation as to why
he had voluntarily dismissed his direct appeal, when his Giglio claim could have and
should have been raised on direct appeal. See United States v. Warner, 23 F.3d 287, 291
(10th Cir. 1994) (“A defendant’s failure to present an issue on direct appeal bars him
from raising the issue in his § 2255 motion, unless he can show cause excusing his
procedural default and actual prejudice resulting from the errors of which he complains,
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or can show that a fundamental miscarriage of justice will occur if his claim is not
addressed.”). The magistrate judge also observed that Mr. Lopez “made no showing of
cause and prejudice” for failing to raise the issue on direct appeal. Appx., Vol. 1 at 23
(quotations omitted). Accordingly, the court held that Mr. Lopez was procedurally
barred from presenting his Giglio claim through a § 2255 motion.
Second, although the procedural ground was “sufficient” to deny the § 2255
motion, the court addressed the merits of Mr. Lopez’s Giglio claim. Id. The court
acknowledged that the discipline and credibility information suggested that Sergeant
Ramos “may appear to be somewhat overzealous in his traffic stops[] and inconsistent in
his court testimony in prior cases.” Id. at 26. But the court concluded that Sergeant
Ramos’s “testimony in this case was corroborated by the videotape recording and the
district court, having viewed the videotape and observed Sergeant Ramos while
testifying, found him to be a credible witness.” Id. at 26-27. The court found it “difficult
to imagine how” the credibility and discipline evidence “would have led to a different
result” for Mr. Lopez’s motion to suppress. Id. at 27. It thus denied the § 2255 motion.
II. DISCUSSION
Mr. Lopez seeks a COA to challenge the district court’s order denying his § 2255
motion. He argues that we should grant a COA on the Giglio issue.
“The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,
1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). If the district court’s decision
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rested on procedural grounds, we will issue a COA only if the applicant “demonstrate[s]
both that ‘jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” Clark v.
Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (emphasis added) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Slack, 529 U.S. at 484.
In his COA application, Mr. Lopez does not challenge, or even address, the court’s
ruling that his Giglio claim is procedurally barred because he could have raised it on
direct appeal. He argues only the merits of his Giglio claim.
The district court’s conclusion that Mr. Lopez’s Giglio claim is procedurally
barred established an independent basis for denying his § 2255 motion. In its words, the
procedural bar was “sufficient to deny the Motion.” Appx., Vol. 1 at 23. Because Mr.
Lopez has not attempted to show that “jurists of reason would find it debatable whether
the district court was correct in its procedural ruling,” Clark, 468 F.3d at 713, he has not
satisfied the COA standard.
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III. CONCLUSION
For the foregoing reasons, we deny Mr. Lopez’s application for COA and dismiss
this matter.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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