United States v. Lopez , 550 F. App'x 622 ( 2013 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    December 19, 2013
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 12-1461
    v.                                   (D.C. Nos. 1:11-CV-02413-MSK and
    1:07-CR-00188-MSK-11)
    ROBERTO LOPEZ,                                           (D. Colo.)
    Defendant - Appellant.
    ORDER DENYING CERTIFICATE
    OF APPEALABILITY
    Before LUCERO, McKAY, and MURPHY, Circuit Judges.
    This matter is before the court on Roberto Lopez’s pro se request for a
    certificate of appealability (“COA”). Lopez seeks a COA so he can appeal the
    district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).
    Because Lopez 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 was convicted of multiple counts of
    trafficking cocaine. United States v. Lopez, 408 F. App’x 159, 159-60 (10th Cir.
    2011). This court affirmed Lopez’s convictions on appeal. 
    Id. at 162.
    Lopez
    thereafter filed the instant § 2255 motion asserting his trial counsel, Gary Hill,
    was ineffective due to Hill’s failure to convey to Lopez a favorable plea offer.
    The district court appointed counsel to represent Lopez and held an evidentiary
    hearing. Lopez testified at the hearing that he went to trial believing the
    government had never made him a plea offer. Hill testified he had conveyed the
    plea offer to Lopez. According to Hill, however, Lopez had consistently refused
    to consider the plea and had, instead, vigorously asserted his innocence. Robert
    Burns, Hill’s paralegal, corroborated Hill’s testimony. Ultimately, the district
    court had to make a credibility determination in choosing between this conflicting
    testimony. Based on inconsistencies in Lopez’s testimony, and its entirely self-
    serving nature, the district court chose to credit Hill’s and Burns’s testimony.
    Having concluded Hill did convey the plea agreement to Lopez, the district court
    concluded Lopez’s claim of ineffective assistance necessarily failed.
    The granting of a COA is a jurisdictional prerequisite to Lopez’s appeal
    from the denial of his § 2255 motion. Miller-El v. Cockrell, 
    537 U.S. 322
    , 336
    (2003). To be entitled to a COA, 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
    -2-
    whether Lopez 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 Lopez 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. Having undertaken
    a review of Lopez’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 is not entitled to a COA.
    Lopez does not come close to demonstrating the district court clearly erred in
    crediting the testimony of Hill and Burns. Thus, because Hill did, in fact, discuss
    the government’s plea offer with Lopez prior to trial, Lopez’s claim of ineffective
    assistance necessarily fails. The district court’s resolution of Lopez’s § 2255
    motion is not reasonably subject to debate and the issue he seeks to raise on
    appeal is not adequate to deserve further proceedings. Accordingly, this court
    DENIES Lopez’s request for a COA and DISMISSES this appeal.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
    -3-
    

Document Info

Docket Number: 19-9002

Citation Numbers: 550 F. App'x 622

Filed Date: 12/19/2013

Precedential Status: Non-Precedential

Modified Date: 1/13/2023