United States v. Alas ( 2023 )

Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 3, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-7049
(D.C. Nos. 6:19-CV-00219-RAW &
NELSON ALAS, 6:17-CR-00049-RAW-2)
(E.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before McHUGH, MURPHY, and CARSON, Circuit Judges.
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This matter is before the court on Nelson Alas’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.*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 2
§ 2253(c)(2), this court denies his request for a COA and dismisses this
appeal. 1
Alas pleaded guilty to a single count of conspiracy to possess with
intent to distribute large quantities of methamphetamine. See 21 U.S.C.
§§ 841, 846. In exchange for Alas’s guilty plea, the government dismissed
numerous additional substantive counts and a count seeking forfeiture of
assets derived from the conspiracy. The district court imposed a sentence of
135 months’ imprisonment, a term at the bottom of the advisory range set
out in the Sentencing Guidelines. Thereafter, Alas filed the instant § 2255
motion, asserting the government breached the plea agreement by failing to
adequately make the district court aware, by the time of sentencing, of any
assistance Alas provided “in any ongoing investigation into criminal activity
within the Eastern District of Oklahoma and elsewhere, or in the prosecution
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The government has filed a motion to dismiss this appeal as untimely.
As the basis for that motion, the government asserts Alas was obligated to file
his notice of appeal within fourteen days of the entry of the judgment. See
Gov’t Motion at 3 (citing Fed. R. App. P. 4(b)(1)(a)(i)). In a proceeding under
§ 2255, however, the notice of appeal must be filed within sixty days of entry
of the judgment. 28 U.S.C. § 2107(b)(1); Fed. R. App. P. 4(a)(1)(B). This is
true because proceedings under § 2255 are civil in nature and involve the
United States and/or one its officers or employees sued in an official capacity.
United States v. Williams, 790 F.3d 1059, 1077 n. 14 (10th Cir. 2015); United
States v. Cruz, 774 F.3d 1278, 1284 (10th Cir. 2014); United States v. Pinto, 1
F.3d 1069, 1070 (10th Cir. 1993). Alas filed his notice of appeal within the
sixty-day window and his appeal is, therefore, timely. Accordingly, the
government’s motion to dismiss the appeal as untimely is DENIED.
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of another person who has committed a criminal offense.” He also raised
two overarching claims of ineffective assistance of counsel.
The district court denied Alas’s request for collateral relief. As to
Alas’s claim the government breached the plea agreement, the district court
found it had, in fact, been made aware of Alas’s cooperation and that the
matter had been vetted at the sentencing hearing. Furthermore, the district
court concluded it was well-aware of its authority to vary or depart sua
sponte based on any such cooperation and that the record demonstrated Alas
was not entitled to such relief. As to Alas’s claims of ineffective assistance,
the district court concluded they were inconsistent with facts and the record
and, more importantly, at odds with “solemn declarations” Alas made “in
open court” during the plea colloquy. See Blackledge v. Allison, 431 U.S.
63, 74 (1977) (“Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.”).
Alas 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, 335–36 (2003). To be entitled to a COA, Alas must make “a
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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 Alas’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 conclude Alas is not entitled to a COA. In so concluding, this court has
nothing to add to the district court’s thorough order denying Alas’s § 2255
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motion. Accordingly, Alas’s request for a COA is DENIED and this appeal
is DISMISSED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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