Appellate Case: 21-6087 Document: 010110609064 Date Filed: 11/23/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 23, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6087
(D.C. Nos. 5:21-CV-00156-R &
JOSHUA ALAN MAUJER, 5:19-CR-00173-R-1)
(W.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before HOLMES, KELLY, and McHUGH, Circuit Judges.
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Defendant-Appellant Joshua Alan Maujer, a federal inmate appearing pro se, seeks
a Certificate of Appealability (COA) to appeal from the district court’s dismissal of his
28 U.S.C. § 2255 motion. See United States v. Maujer, No. CR-19-173-R, 2021 WL
3177422 (W.D. Okla. July 27, 2021). Exercising jurisdiction under 28 U.S.C. §§ 1291
and 2253(a), we deny a COA and dismiss the appeal.
Background
In 2019, Mr. Maujer was indicted on two counts of distribution of
methamphetamine to an undercover officer and one count of possession 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This order is not binding precedent except under the doctrines of law of the case, res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.
Appellate Case: 21-6087 Document: 010110609064 Date Filed: 11/23/2021 Page: 2
methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1). Mr. Maujer pled
guilty to one count of distribution and waived his right to collaterally challenge his
conviction or sentence “except with respect to claims of ineffective assistance of
counsel.” His advisory guideline sentence was 210 to 262 months’ imprisonment, but the
district court varied downward and imposed 108 months.
Mr. Maujer subsequently filed a motion under 28 U.S.C. § 2255 and raised four
ineffective assistance of counsel claims. In his appellate filings, Mr. Maujer presents 13
such claims, 11 of which are entirely new. We decline to review the claims not raised
below and deny a COA because the district court’s resolution is not reasonably debatable.
Discussion
I. Forfeiture
Absent extraordinary circumstances, this court does not consider issues not
presented to the district court. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.
2012). While a pro se application “is entitled to a liberal construction,” we may not
rewrite an application. Childers v. Crow, 1 F.4th 792, 798 (10th Cir. 2021). In his initial
motion, Mr. Maujer argued that counsel failed to inform him that he waived an appeal by
taking a plea, failed to object to the presentencing report, failed to communicate
adequately, and failed to pursue relief under the First Step Act. See Maujer, 2021 WL
3177422, at *2–4. The only ground challenged on appeal that was raised below pertains
to counsel failing to communicate adequately.
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II. Counsel’s Failure to Communicate
To obtain a COA from this court, Mr. Maujer must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a claim has been
denied on the merits, the movant “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). To establish an ineffective assistance of council
claim, Mr. Maujer must show deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Prejudice requires showing a reasonable
probability that he would have gone to trial (rather than pled guilty), but for counsel’s
errors and omissions. Missouri v. Frye, 566 U.S. 134, 148 (2012).
Mr. Maujer argues that his counsel provided ineffective assistance because she
“[f]ailed to disclose discovery and exculpatory evidence to [him] and discuss [the] plan
or course of action.” Aplt. Br. at 9. Additionally, he argues that his counsel “[f]ailed to
adequately visit[ and] communicate with [him] regarding discovery and other pertinent
factors of the case.” Aplt. Br. at 10. The district court’s conclusion that Mr. Maujer
cannot demonstrate how this prejudiced him is not reasonably debatable. We note that
Mr. Maujer expressed satisfaction with his counsel at the change of plea hearing and that
the district court granted a substantial variance but was justifiably concerned with the
“huge amount of drugs” notwithstanding counsel’s efforts.
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We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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