United States v. Altamirano

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 27 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 02-2099
(D.C. Nos. CIV-00-257 JC/WWD,
JOSE GUADALUPE ALTAMIRANO, CR-96-220-JC)
(D. N.M.)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Jose Altamirano, proceeding pro se, effectively seeks to appeal from the

district court’s denial of his motion to vacate, set aside or correct his sentence,

filed pursuant to 28 U.S.C. § 2255. To proceed on appeal before this court,

appellant must obtain a certificate of appealability (COA), see id.

§ 2253(c)(1)(B). Mr. Altamirano sought a COA from the district court, which

request was denied. We construe his appellate arguments as seeking COA before

this court. A COA will not issue unless he makes “a substantial showing of the

denial of a constitutional right.” Id. § 2253(c)(2).

On appeal, Mr. Altamirano, who is currently serving a prison sentence after

conviction of conspiracy and possession with intent to distribute

methamphetamine, raises three arguments. The first, asserting a Brady violation

in connection with a co-defendant’s proffer of evidence, 1
is a new theory raised

for the first time on appeal, and we decline to consider it. See Walker v. Mather

(In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Additionally, Mr. Altamirano

contends that his counsel was ineffective in failing to seek a separate trial from

that of his co-defendants and that the district court erroneously attributed an

excessive amount of drugs to him. Construing his pro se arguments liberally, see

Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998), and after careful

1
See United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir. 1999)
(discussing claims under Brady v. Maryland , 373 U.S. 83 (1963) and
related cases).

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consideration of these issues in light of applicable law, we conclude

Mr. Altamirano has not met the standards for issuance of a COA. The implied

motion for a COA is DENIED and this appeal is DISMISSED.

Entered for the Court

Monroe G. McKay
Circuit Judge

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