FILED
United States Court of Appeals
Tenth Circuit
January 15, 2013
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 12-3185
v. (D.C. Nos. 5:11-CV-04118-RDR and
5:09-CR-40039-RDR-1)
FRANCISCO NUNEZ, (D. Kansas)
Defendant–Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Appellant seeks a certificate of appealability to appeal the district court’s denial of
his 28 U.S.C. § 2255 habeas petition. Appellant pled guilty to a federal drug charge and
was sentenced to 121 months of imprisonment, one month above the statutory mandatory
minimum sentence for his offense. Appellant filed an appeal, but his appeal was
dismissed pursuant to the plea agreement’s waiver of appellate rights. In his § 2255
motion, Appellant claimed he received ineffective assistance of counsel during the plea
negotiations because counsel failed to advise him of the deportation consequences 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This order is not binding precedent except under the doctrines of law of the case,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.
pleading guilty and promised he would receive a lower sentence than the sentence he
ultimately received. After reviewing the record, the district court concluded there was no
factual support for Appellant’s claims. The record, including Appellant’s own statements
at the change of plea hearing and at sentencing, clearly demonstrated that Appellant was
indeed informed of the possibility of deportation and of the potential sentence he faced.
Because the record conclusively refuted Appellant’s factual allegations, the court denied
the habeas petition without holding an evidentiary hearing.
After thoroughly reviewing Appellant’s arguments and the record on appeal, we
conclude that reasonable jurists would not debate the district court’s decision. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Thus, for substantially the same reasons given by
the district court, we DENY Appellant’s request for a certificate of appealability and
DISMISS the appeal. We also DENY Appellant’s request for the appointment of legal
counsel to represent him on appeal. Appellant’s motion to proceed in forma pauperis on
appeal is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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