United States v. Delgado-Ornelas , 691 F. App'x 522 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3053
(D.C. Nos. 6:15-CR-10141-EFM-1
FERNANDO DELGADO- and 6:16-CV-01422-EFM)
ORNELAS, (D. Kan.)
Defendant - Appellant.
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ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
DISMISSING THE APPEAL
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
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This appeal involves the denial of relief under 28 U.S.C. § 2255. The
threshold issue is whether the defendant has justified a certificate of
appealability. We answer “no” and decline to issue a certificate of
appealability. This decision requires us to dismiss the appeal.
The defendant, Mr. Fernando Delgado-Ornelas, wants to appeal a
conviction based on ineffective assistance of counsel. Mr. Delgado was
charged in federal court with illegal reentry after removal based on a
conviction for an aggravated felony. After conferring with counsel, Mr.
Delgado pleaded guilty. The district court accepted the plea and imposed a
prison term of 37 months. According to Mr. Delgado, his attorney provided
ineffective assistance by promising a lower sentence. The district court
rejected this claim, reasoning that the plea colloquy belied the alleged
promise and that the alleged ineffectiveness would not have been
prejudicial.
To appeal this ruling, Mr. Delgado-Ornelas needs a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B). Such a certificate may issue only
if Mr. Delgado-Ornelas has made a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537
U.S. 322, 336 (2003). Where, as here, the district court has dismissed a
petitioner’s § 2255 claim on the merits, the petitioner must show that the
district court’s conclusion was subject to reasonable debate. Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
In our view, the district court’s reasoning is not subject to reasonable
debate. As a result, we decline to issue a certificate of appealability. And
in the absence of a certificate of appealability, we must dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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