FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 1, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 12-3227
(D.C. Nos. 2:06-CR-20183-JWL-1 and
CARLOS LOPEZ, 2:12-CV-02099-JWL)
(D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.
Carlos Lopez seeks to appeal from the denial of his motion for post-conviction
relief under 28 U.S.C. § 2255. Unable to identify any non-frivolous grounds for appeal,
Lopez’s counsel filed an Anders brief and sought leave to withdraw. See Anders v.
California, 386 U.S. 738 (1967).1 Because Lopez has not made “a substantial showing of
1
Anders holds “if counsel finds [his client’s] case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw.” 386 U.S. at 744. Counsel must submit to both the court and his client a
“brief referring to anything in the record that might arguably support the appeal.” Id.
The client may then “raise any points he chooses.” Id. Thereafter, the court must
examine all the proceedings to determine the frivolity of the appeal. “If it so finds it may
grant counsel’s request to withdraw and dismiss the appeal . . . . [I]f it finds any of the
legal points arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.” Id.
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a certificate of
appealability (COA), grant counsel’s motion to withdraw, and dismiss.
I. BACKGROUND
A jury convicted Lopez on two counts related to the possession and distribution of
methamphetamine.2 The judge sentenced him to imprisonment for 360 months. We
affirmed his conviction on direct appeal. United States v. Lopez, 382 F. App’x 680, 681
(10th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 1519 (2011).
Lopez, acting pro se, then filed a timely 28 U.S.C. § 2255 motion alleging
ineffective assistance of his trial counsel, Michael Harris. In particular, it alleged Harris
failed to:
(1) “adequately advise Lopez with respect to his decision to negotiate a plea and plead
guilty or risk a jury trial”;
(2) “advis[e] Lopez of the expediency in pursuing plea negotiations” or “plea offers”;
(3) “address[] and resolv[e] communication problems” with Lopez, particularly as
Lopez was fluent in Spanish but not English;
(4) “adequately review, explain and be sure Lopez understood the nature of charges
against him and the evidence/discovery material related to the case”;
(5) “object, or otherwise preserve for appellate review the testimony . . . of an
unauthorized expert . . . proffered without notice”;
(6) “adequately advise Lopez with respect to [his] decision to testify” or “properly
prepare [him] to take the stand”;
(7) prevent “the plea agreement of [a] cooperating witness [from being] introduced
into the record”;
2
Lopez was indicted and convicted on one count of conspiracy to distribute and
possess with the intent to distribute 500 grams or more of methamphetamine and one
count of possessing 500 grams or more of methamphetamine with intent to distribute.
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(8) “effectively represent Lopez during sentencing proceedings by presenting
evidence and arguments in support of objections and/or grounds for mitigation.”
(R. Vol. I at 379-89 (capitalization modified).) The motion also alleged the cumulative
effect of these failures (combined with a smattering of other alleged failures) constituted
ineffective assistance of counsel.
The district judge appointed new counsel to represent Lopez in conjunction with
his § 2255 motion and scheduled an evidentiary hearing. At the hearing, both the
government and Lopez questioned Harris about his representation of Lopez. Harris
testified to using a Spanish-language interpreter to carefully explain the charges, the
available plea options, the adverse evidence, the sentencing consequences of proceeding
to trial, and the trial strategy options to Lopez. Harris said he had advised Lopez to plead
guilty because of the strength of the prosecution’s case, but Lopez steadfastly rejected
this option.
In a detailed order, the judge denied the § 2255 motion.3 Crediting Harris’s
testimony over Lopez’s account, the judge concluded Lopez had failed to demonstrate his
trial counsel was ineffective.4 See Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Harris had adequately advised Lopez throughout the proceedings and had made
sound tactical decisions at trial.
Through counsel, Lopez filed a notice of appeal seeking review of the denial of his
§ 2255 motion. After his attorney filed an Anders brief, we invited Lopez to respond to
3
He also denied Lopez’s request for a COA.
4
At the evidentiary hearing, Lopez abandoned the argument that Harris was
ineffective for failing to adequately prepare him to testify.
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the Anders brief and to “raise any points to show why [his] conviction should be set
aside.” (Order of Dec. 17, 2012.) No response was filed.
II. DISCUSSION
A COA is a jurisdictional prerequisite to our review of a denial of a motion for
post-conviction relief under 28 U.S.C. § 2255. 28 U.S.C. § 2253(a), (c)(2); Miller–El v.
Cockrell, 537 U.S. 322, 336 (2003). We issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An
applicant makes this showing by demonstrating the proper resolution of the constitutional
issue is debatable among reasonable jurists or by presenting an argument deserving
“encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotation marks omitted). To make this determination, we undertake a preliminary,
though not definitive, legal analysis of the applicant’s claims. See Miller–El, 537 U.S. at
338.
Here, however, Lopez has failed to make this showing. Indeed, he has identified
no weaknesses in the judge’s factual findings or application of the law. After carefully
reviewing the transcript of the evidentiary hearing and counsel’s Anders brief, we see
nothing debatable about the decision or any argument deserving encouragement to
proceed further.
We DENY Lopez’s request for a COA, GRANT counsel’s motion to withdraw,
and DISMISS this matter.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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