United States v. Benitez-Lopez ( 2022 )


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  • Appellate Case: 22-1045      Document: 010110693023                     FILED Page: 1
    Date Filed: 06/06/2022
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS               June 6, 2022
    Christopher M. Wolpert
    TENTH CIRCUIT                  Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 22-1045
    v.
    (D.C. Nos. 1:21-CV-00477-PAB
    & 1:18-CR-00328-PAB-6)
    MICHAEL BENITEZ-LOPEZ, also
    (D. Colo.)
    known as Mikey, also known as
    Money Mike,
    Defendant - Appellant.
    ORDER DENYING CERTIFICATE
    OF APPEALABILITY
    Before PHILLIPS, MURPHY, and EID, Circuit Judges.
    This matter is before the court on Michael Benitez-Lopez’s pro se request 1
    for a certificate of appealability (“COA”). He seeks a COA so he can appeal the
    denial of his 
    28 U.S.C. § 2255
     motion. See 
    28 U.S.C. § 2253
    (c)(1)(B) (providing
    no appeal is allowed from a “final order in a proceeding under section 2255”
    unless the movant first obtains a COA). Because he has not “made a substantial
    1
    The court construes Benitez-Lopez’s filings liberally because he is not
    represented by counsel. Haines v. Kerner, 
    404 U.S. 519
    , 520-21 (1972); Hall v.
    Bellmon, 
    935 F.2d 1106
    , 1110 (10th Cir. 1991). This court will not, however, act
    as a pro se litigant’s advocate. Hall, 
    935 F.2d at 1110
    .
    Appellate Case: 22-1045   Document: 010110693023       Date Filed: 06/06/2022   Page: 2
    showing of the denial of a constitutional right,” 
    id.
     § 2253(c)(2), this court denies
    his request for a COA and dismisses this appeal.
    Following a jury trial, Benitez-Lopez was convicted of multiple drug
    crimes. See 
    18 U.S.C. §§ 841
    , 843, 846. The district court sentenced him to 180
    months’ imprisonment on count one (the conspiracy count), 48 months’
    imprisonment on count eight (the use-of-a-communication-facility-in-connection-
    with-a-drug-trafficking-offense count), and 180 months’ imprisonment on count
    10 (the possession-of-cocaine count). The district court ordered that all three
    sentences run concurrently. Benitez-Lopez appealed and this court affirmed.
    United States v. Benitez-Lopez, 834 F. App’x 463, 466 (10th Cir. 2020).
    Thereafter, Benitez-Lopez filed the instant, timely § 2255 motion, raising
    substantive and ineffective-assistance-based challenges to his convictions.
    In a comprehensive and well-stated order, the district court denied Benitez-
    Lopez’s request for collateral relief. The district court concluded Benitez-
    Lopez’s due process and double jeopardy challenges were procedurally barred
    because they were not raised on direct appeal. Nevertheless, the district court
    considered the merits of these claims under the rubric of ineffective assistance of
    trial and appellate counsel. The district court concluded Benitez-Lopez’s
    ineffective-assistance-of-counsel claims failed because the objections he asserted
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    Appellate Case: 22-1045   Document: 010110693023       Date Filed: 06/06/2022    Page: 3
    counsel should have raised at trial or on appeal were without merit. See
    Strickland v. Washington, 
    466 U.S. 668
    , 678-88 (1984).
    Benitez-Lopez seeks a COA so he can appeal the district court’s denial of
    his § 2255 motion. The granting of a COA is a jurisdictional prerequisite to an
    appeal from the denial of a § 2255 motion. Miller-El v. Cockrell, 
    537 U.S. 322
    ,
    336 (2003). To be entitled to a COA, Benitez-Lopez 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 “reasonable jurists could debate
    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, 
    537 U.S. at 336
     (quotations
    omitted). In evaluating whether he has satisfied this burden, we undertake “a
    preliminary, though not definitive, consideration of the [legal] framework”
    applicable to each of his claims. 
    Id. at 338
    . Although he 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.
     (quotations
    omitted).
    Having undertaken a review of Benitez-Lopez’s combined appellate brief
    and request for COA, the district court’s order, and the entire record before this
    court pursuant to the framework set out by the Supreme Court in Miller-El, we
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    Appellate Case: 22-1045   Document: 010110693023      Date Filed: 06/06/2022   Page: 4
    conclude Benitez-Lopez is not entitled to a COA. In so concluding, this court has
    nothing to add to the district court’s cogent, thorough order denying his § 2255
    motion. Accordingly Benitez-Lopez’s request for a COA is DENIED and this
    appeal is DISMISSED.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
    -4-