FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 20, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-5158
(D.C. Nos. 4:09-CV-00077-JHP-PJC
v. and 4:06-CR-00077-JHP-1)
N.D. Oklahoma
RENATO VALDOVINOS,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before HARTZ, EBEL, and MURPHY, Circuit Judges.
Proceeding pro se, Renato Valdovinos seeks to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
The matter is before this court on Valdovinos’s request for a certificate of
appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be
taken from a “final order in a proceeding under section 2255” unless the movant
first obtains a COA). Because Valdovinos has not “made a substantial showing
of the denial of a constitutional right,” this court denies his request for a COA
and dismisses this appeal. Id. § 2253(c)(2).
Valdovinos was charged in a two-count indictment with possession with
intent to distribute methamphetamine, and conspiracy to possess with intent to
distribute methamphetamine. He pleaded guilty to both counts and was sentenced
to a term of 210 months’ imprisonment. He did not file a direct appeal.
Valdovinos raised just one claim in the § 2255 motion he filed in the
United States District Court for the Northern District of Oklahoma: that his trial
counsel “was ineffective for failing to file a notice of appeal and consult about an
appeal.” The district court held an evidentiary hearing on December 21, 2011, at
which Valdovinos’s trial counsel testified. After considering counsel’s testimony
and her sworn affidavit, the district court found counsel “correctly advised
[Valdovinos] of the potential consequences of an appeal, and he subsequently
informed her that he did not wish to appeal.” Based on this finding, the court
concluded Valdovinos was not entitled to habeas relief because he failed to show
counsel’s performance fell below an objective standard of reasonableness. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also United States v.
Orange, 447 F.3d 792, 796-97 (10th Cir. 2006) (“Because [a defendant] must
demonstrate both Strickland prongs to establish his claim, a failure to prove
either one is dispositive.” (citation omitted)).
To be entitled to a COA, Valdovinos must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the
requisite showing, he must demonstrate “that reasonable jurists could debate
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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.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (quotations omitted). In evaluating whether Valdovinos has satisfied his
burden, this court undertakes “a preliminary, though not definitive, consideration
of the [legal] framework” applicable to each of his claims. Id. at 338. Although
Valdovinos need not demonstrate his appeal will succeed to be entitled to a COA,
he must “prove something more than the absence of frivolity or the existence of
mere good faith.” Id.
Having undertaken a review of Valdovinos’s application for a COA and
appellate brief, the district court’s order, and the entire record on appeal pursuant
to the framework set out by the Supreme Court in Miller-El, this court concludes
Valdovinos is not entitled to a COA. 1 The district court’s resolution of his
§ 2255 motion is not reasonably subject to debate and the issues he seeks to raise
1
In his appellate brief, Valdovinos attempts to raise additional claims that
were not included in his § 2255 motion. We will not address any of these issues.
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent
extraordinary circumstances, [this court] will not consider arguments raised for
the first time on appeal. This is true whether an appellant is attempting to raise a
bald-faced new issue or a new theory that falls under the same general category
as a previous argument.” (quotations and citation omitted)).
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on appeal are not adequate to deserve further proceedings. Accordingly, this
court denies Valdovinos’s request for a COA and dismisses this appeal. His
request to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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