United States v. Flores , 537 F. App'x 810 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSNovember 4, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 13-8023
(D. Wyoming)
v.
(D.C. Nos. 2:12-CV-00080-CAB and
2:09-CR-00135-WFD-4)
ALFREDO NAVARRO FLORES,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Proceeding pro se, Alfredo Navarro Flores seeks to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence. The matter is before this court on Flores’s request for a certificate of
appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be
taken from a “final order in a proceeding under section 2255” unless the movant
first obtains a COA). Because Flores has not “made a substantial showing of the
denial of a constitutional right,” this court denies his request for a COA and
dismisses this appeal. Id. § 2253(c)(2).
Flores was indicted for conspiracy to possess with intent to distribute
methamphetamine, distribution of methamphetamine, and two counts of knowing
use of a telephone to facilitate a drug offense. Flores pleaded guilty to the
conspiracy and distribution counts and was sentenced to a mandatory minimum
term of 120 months’ incarceration. On direct appeal, this court rejected Flores’s
assertion he was prejudiced by the government’s failure to notify him of his right
to consult with the Mexican Consulate as required by the Vienna Convention on
Consular Relations. United States v. Navarro-Flores, 421 F. App’x 863, 866
(10th Cir. 2011) (unpublished disposition).
In his pro se § 2255 motion, Flores raised several claims of ineffective
assistance of trial counsel, including claims counsel (1) failed to argue for a
reduction in his sentence pursuant to the “safety valve” provisions of U.S.S.G.
§ 5C1.2, (2) failed to seek a mitigating-role downward adjustment under U.S.S.G.
§ 3B1.2, and (3) failed to object to drug quantity calculations used to determine
his sentence. In addition to his ineffective assistance claims, Flores also sought
modification of his sentence because he believed it was unreasonably long.
The claims raised in Flores’s motion were addressed by the district court
which began by correctly noting that to establish the ineffectiveness of his
counsel, Flores must demonstrate both that counsel’s performance was deficient
and that he was prejudiced by the deficient performance. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Applying Strickland to Flores’s
ineffective assistance claims, the court concluded that Flores failed, in each
instance, to demonstrate deficient performance on the part of his counsel. The
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district court then concluded that Flores’s challenge to the reasonableness of his
sentence was procedurally barred. See United States v. Allen, 16 F.3d 377, 378
(10th Cir. 1994) (“A defendant who fails to present an issue on direct appeal is
barred from raising the issue in a § 2255 motion, unless he can show cause for his
procedural default and actual prejudice resulting from the alleged errors, or can
show that a fundamental miscarriage of justice will occur if his claim is not
addressed.”). The court further concluded that, even in the absence of a
procedural bar, the claim had no merit.
Flores is before this court seeking a COA on two of the issues raised in his
§ 2255 motion: his assertions counsel was ineffective for failing to seek sentence
reductions under the safety valve and minor participant provisions of the
Sentencing Guidelines. To be entitled to a COA, Flores 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 “that 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 v. Cockrell, 537 U.S. 322,
336 (2003) (quotations omitted). In evaluating whether Flores has satisfied his
burden, this court undertakes “a preliminary, though not definitive, consideration
of the [legal] framework” applicable to each of his claims. Id. at 338. Although
Flores need not demonstrate his appeal will succeed to be entitled to a COA, he
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must “prove something more than the absence of frivolity or the existence of mere
good faith.” Id.
Having undertaken a review of Flores’s application for a COA and
appellate brief, the district court’s order, and the entire record on appeal pursuant
to the framework set out by the Supreme Court in Miller-El, this court concludes
Flores is not entitled to a COA. The district court’s resolution of his § 2255
motion is not reasonably subject to debate and the issues he seeks to raise on
appeal are not adequate to deserve further proceedings. Accordingly, this court
denies Flores’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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