United States v. Lopez-Garcia ( 2022 )

FILED
Appellate Case: 21-3109 Document: 010110640144 United
Date Filed: States CourtPage:
02/02/2022 of Appeals
1
Tenth Circuit
February 2, 2022
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appelle, No. 21-3109
(D.C. Nos. 2:18-CV-02448-JAR,
v. 2:14-CR-20071-JAR-7)
(D. Kan.)
JUAN MANUEL LOPEZ-GARCIA,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
This matter is before the court on Juan Manuel Lopez-Garcia’s pro se
request 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 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, Lopez-Garcia was convicted of conspiring to possess
with the intent to distribute more than fifty grams of methamphetamine and of
Appellate Case: 21-3109 Document: 010110640144 Date Filed: 02/02/2022 Page: 2
possessing firearms as an illegal alien. The trial court sentenced Lopez-Garcia to
a life term on the conspiracy count and ten years’ imprisonment on the firearms
conviction. On appeal, Lopez-Garcia challenged the reasonableness of his
sentences, but this court affirmed. See generally United States v. Lopez-Garcia,
713 F. App’x 785 (10th Cir. 2017). Thereafter, Lopez-Garcia filed the instant
§ 2255 motion, raising numerous challenges to his convictions and sentences.
In an exceedingly comprehensive and well-stated order, the district court
denied Lopez-Garcia’s request for collateral relief. The district court concluded
the majority of the issues raised in Lopez-Garcia’s § 2255 motion were
procedurally barred because he did not raise them on direct appeal. Nevertheless,
the district court thoroughly examined each of the issues and concluded they
failed on the merits. As to the claims raised by Lopez-Garcia that were not
subject to procedural bar—his claims of ineffective assistance of counsel—the
district court concluded that, with the exception of a single claim, all were so
lacking in supporting facts that they failed to state a viable claim. See United
States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). Finally, the district court
concluded that Lopez-Garcia’s claim that his appellate counsel should have raised
claims of ineffective assistance of trial counsel on direct appeal was supported by
sufficient factual averments. It concluded the claim failed, however, because this
court’s precedents make clear that almost all such claims should be raised in
collateral proceedings. See United States v. Galloway, 56 F.3d 1239, 1240 (10th
-2-
Appellate Case: 21-3109 Document: 010110640144 Date Filed: 02/02/2022 Page: 3
Cir. 1995) (“Ineffective assistance of counsel claims should be brought in
collateral proceedings, not on direct appeal. Such claims brought on direct appeal
are presumptively dismissible, and virtually all will be dismissed.”); Fairchild v.
Trammell, 784 F.3d 702, 715 (10th Cir. 2015) (“To prevail on a claim of
ineffective assistance of appellate counsel, a defendant must establish that
counsel was objectively unreasonable in failing to raise or properly present a
claim on direct appeal, and that there is a reasonable probability that, but for this
unreasonable failure, the claim would have resulted in relief on direct appeal.”).
Lopez-Garcia seeks a COA so he can appeal the district court’s resolution
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, Lopez-Garcia must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is,
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.” Id.(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
-3-
Appellate Case: 21-3109 Document: 010110640144 Date Filed: 02/02/2022 Page: 4
something more than the absence of frivolity or the existence of mere good faith.”
Id.Having undertaken a review of Lopez-Garcia’s appellate filings, 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 conclude Lopez-Garcia is not
entitled to a COA. In so concluding, this court has nothing to add to the district
court’s cogent, thorough order denying Lopez-Garcia’s § 2255 motion.
Accordingly Lopez-Garcia’s request for a COA is DENIED and this appeal is
DISMISSED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-