United States v. Pulido-Pedrosa , 318 F. App'x 699 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
March 31, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-8083
v. D. Wyoming
ESEQUIEL PULIDO-PEDROSA, (D.C. Nos. 05-CV-00191-CAB and
02-CR-00190-CAB-1)
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
Petitioner and appellant, Esequiel Pulido-Pedrosa, proceeding pro se, seeks
a certificate of appealability (“COA”) to enable him to appeal the district court’s
*
This order and judgment is not binding precedent except under the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.
order denying his 28 U.S.C. § 2255 petition to vacate, modify, or set aside his
sentence. For substantially the same reasons that the district court set forth in its
well-reasoned order, we deny Pulido-Pedrosa’s application for a COA and dismiss
this matter.
BACKGROUND
As we stated in our decision affirming Pulido-Pedrosa’s conviction on
direct appeal, Pulido-Pedrosa, along with a co-defendant, was found guilty by a
jury of “possessing with intent to distribute, and conspiracy to possess with intent
to distribute, methamphetamine.” United States v. Pulido-Jacobo , 377 F.3d
1124, 1128 (10th Cir. 2004). Additionally, Pulido-Pedrosa pled guilty to illegally
re-entering the United States after previously being deported, in violation of 8
U.S.C. §§ 1326(a)(1)and (b)(2). He was sentenced to life imprisonment on the
methamphetamine charges and twenty years on the illegal re-entry charge, all to
run concurrently. We affirmed his conviction and sentence. Pulido-Jacobo, 377
F.3d 1124. The United States Supreme Court denied Pulido-Pedrosa’s petition for
a writ of certiorari. Pulido-Pedrosa v. United States, 543 U.S. 1030 (2004).
Pulido-Pedrosa then filed the instant § 2255 petition, alleging: (1) that his
convictions on the methamphetamine counts should be set aside for insufficient
evidence; (2) that his sentence was unlawful in light of United States v. Booker,
543 U.S. 220 (2005); and (3) that his attorney was constitutionally ineffective.
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The court determined that an evidentiary hearing was unnecessary. Order at 20,
R. Vol. One, tab 11 (“The files and the records in this case conclusively illustrate
that the Petitioner is not entitled to any relief. Accordingly, no evidentiary
hearing is required.”). The district court then denied Pulido-Pedrosa’s petition.
The court did not issue a COA, and we therefore presume it was denied. See 10th
Cir. R. 22.1(C).
DISCUSSION
Pulido-Pedrosa has filed a request for a COA as well as a pro se appellate
brief. We, therefore, must first address whether to grant Pulido-Pedrosa a COA to
enable him to appeal the district court’s denial of his § 2255 motion.
In order to obtain a COA, an appellant must make a “substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). In
addressing this question, we review Pulido-Pedrosa’s pro se filings with special
solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Even according Pulido-Pedrosa’s materials such a solicitous construction, we
conclude, based upon our own review of the record in this case, and for
substantially the reasons given by the district court, that no reasonable jurist
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could debate the correctness of the district court’s ruling. Pulido-Pedrosa’s
request for a COA is therefore denied and this matter is dismissed. 1
CONCLUSION
For the foregoing reasons, we DENY a COA and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
1
Pulido-Pedrosa’s motion to proceed in forma pauperis is also denied.
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