United States v. Armando Barajas-Garcia , 303 F. App'x 677 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 18, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-1261
(D.C. Nos. 06-CR-143-LTB and
ARMANDO BARAJAS-GARCIA, 1:07-CV-02499-LTB)
(D. Colo.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Armando Barajas-Garcia pled guilty to unlawful re-entry into the United
States and was sentenced to 57 months. Mr. Barajas-Garcia’s sentence was
upheld by this court in United States v. Barajas-Garcia, 2007 WL 1196511 (10th
Cir. 2007). Subsequently, Mr. Barajas-Garcia filed the instant collateral
challenge to his confinement pursuant to 28 U.S.C. § 2255. In an extensively
reasoned opinion, the district court denied relief and Mr. Barajas-Garcia’s request
for a certificate of appealability (“COA”).
*
This order is not binding precedent except under the doctrines of law of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.
Mr. Barajas-Garcia now seeks a COA from us to enable him to appeal the
district court’s denial of his § 2255 motion. In order to secure a COA, a
petitioner 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 assessing this question, we
review Mr. Barajas-Garcia’s pro se filings with special solicitude. See Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). Even when viewed
through this lens, however, to the extent that Mr. Barajas-Garcia seeks to
challenge the district court’s disposition of his § 2255 motion, we conclude based
on our review of the record, and for substantially the same reasons given by the
district court in its thoughtful opinion, that no reasonable jurist could debate the
correctness of that court’s rulings. To the extent Mr. Barajas-Garcia seeks to
raise new issues on appeal that were not presented to the district court, we decline
to consider them. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004)
(court of appeals may decline to consider novel argument in application for COA
not presented first to the district court). Mr. Barajas-Garcia’s request for COA is
therefore denied and this appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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