United States v. Lopez ( 2012 )


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  •                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    TENTH CIRCUIT                           October 17, 2012
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 12-2092
    (D.C. Nos. 2:11-CV-00990-MCA-ACT
    MANUEL LOPEZ,                                       and 1:08-CR-02968-MCA-1 )
    (D. N. M.)
    Defendant – Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *                       0F
    Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
    Manuel Lopez, a federal prisoner, seeks a certificate of appealability (“COA”) to
    challenge the district court’s order denying his 
    28 U.S.C. § 2255
     motion to vacate, set
    aside, or correct his sentence. See 
    28 U.S.C. § 2253
    (c)(1)(B) (requiring a COA to appeal
    a “final order in a proceeding under section 2255”). Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we dismiss this matter.
    * This order is not binding precedent, except under the doctrines of law of the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.
    I.      BACKGROUND
    In December 2008, New Mexico State Police Sergeant Nick Ramos stopped Mr.
    Lopez’s vehicle for speeding west of Albuquerque, New Mexico. Mr. Lopez was asked
    to exit his vehicle. After placing his hands in his pockets, he stated he had a knife in his
    pocket. Sergeant Ramos conducted a pat-down of Mr. Lopez and felt a cylindrical
    object. Mr. Lopez stated they were pills.
    Sergeant Ramos removed Mr. Lopez’s knife and asked him to empty his pockets.
    When Mr. Lopez did so, Sergeant Ramos noticed that his right hand was curled. Mr.
    Lopez backed up when asked what was in his hand. Thinking that Mr. Lopez was about
    to flee, Sergeant Ramos grabbed Mr. Lopez and braced him against the police cruiser.
    Sergeant Ramos then thought Mr. Lopez attempted to place his hand near his
    mouth to ingest something. Sergeant Ramos attempted to choke Mr. Lopez to prevent
    him from swallowing, and Mr. Lopez was handcuffed. A cylindrical object was retrieved
    from Mr. Lopez’s shirt pocket. Police discovered methamphetamine in the container, and
    they discovered more methamphetamine in Mr. Lopez’s trunk after a K-9 alert.
    Mr. Lopez was arrested and charged with possessing with intent to distribute 500
    grams or more of methamphetamine. He moved to suppress the methamphetamine
    evidence, and the district court held a hearing at which Sergeant Ramos testified. After
    viewing video of the stop, the district court found that Mr. Lopez had not placed his hand
    near his mouth. Nonetheless, the court accepted as credible Sergeant Ramos’s testimony
    that he believed, from his perspective behind Mr. Lopez, that Mr. Lopez had placed his
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    hand near his mouth and was ingesting something. The court held that Sergeant Ramos
    could then constitutionally take and open the cylindrical container from Mr. Lopez’s shirt
    pocket “to ensure [Mr. Lopez’s] safety and to anticipate a possible overdose.” Appx.,
    Vol. 1 at 21. The court denied Mr. Lopez’s motion to suppress.
    On December 7, 2009, Mr. Lopez signed a written plea agreement, which reserved
    his right to appeal the denial of the motion to suppress. Judgment was entered on
    February 24, 2010, and Mr. Lopez appealed. On August 4, 2010, the Government
    provided Mr. Lopez with information concerning Sergeant Ramos’s disciplinary history
    and the credibility of his testimony in other proceedings. He moved for the voluntary
    dismissal of his appeal, and the Tenth Circuit granted his motion on November 8, 2010.
    On November 7, 2011, Mr. Lopez filed a § 2255 motion arguing that, under Giglio
    v. United States, 
    405 U.S. 150
     (1972), the Government was required and had failed to
    disclose in a timely manner the information regarding Sergeant Ramos’s disciplinary
    history and credibility. A magistrate judge recommended denying the § 2255 motion on
    two separate bases, which the federal district court adopted.
    First, the magistrate judge noted that Mr. Lopez offered no explanation as to why
    he had voluntarily dismissed his direct appeal, when his Giglio claim could have and
    should have been raised on direct appeal. See United States v. Warner, 
    23 F.3d 287
    , 291
    (10th Cir. 1994) (“A defendant’s failure to present an issue on direct appeal bars him
    from raising the issue in his § 2255 motion, unless he can show cause excusing his
    procedural default and actual prejudice resulting from the errors of which he complains,
    -3-
    or can show that a fundamental miscarriage of justice will occur if his claim is not
    addressed.”). The magistrate judge also observed that Mr. Lopez “made no showing of
    cause and prejudice” for failing to raise the issue on direct appeal. Appx., Vol. 1 at 23
    (quotations omitted). Accordingly, the court held that Mr. Lopez was procedurally
    barred from presenting his Giglio claim through a § 2255 motion.
    Second, although the procedural ground was “sufficient” to deny the § 2255
    motion, the court addressed the merits of Mr. Lopez’s Giglio claim. Id. The court
    acknowledged that the discipline and credibility information suggested that Sergeant
    Ramos “may appear to be somewhat overzealous in his traffic stops[] and inconsistent in
    his court testimony in prior cases.” Id. at 26. But the court concluded that Sergeant
    Ramos’s “testimony in this case was corroborated by the videotape recording and the
    district court, having viewed the videotape and observed Sergeant Ramos while
    testifying, found him to be a credible witness.” Id. at 26-27. The court found it “difficult
    to imagine how” the credibility and discipline evidence “would have led to a different
    result” for Mr. Lopez’s motion to suppress. Id. at 27. It thus denied the § 2255 motion.
    II.     DISCUSSION
    Mr. Lopez seeks a COA to challenge the district court’s order denying his § 2255
    motion. He argues that we should grant a COA on the Giglio issue.
    “The issuance of a COA is a jurisdictional prerequisite to an appeal from the
    denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 
    596 F.3d 1228
    ,
    1241 (10th Cir. 2010); see also 
    28 U.S.C. § 2253
    (c)(1)(B). If the district court’s decision
    -4-
    rested on procedural grounds, we will issue a COA only if the applicant “demonstrate[s]
    both that ‘jurists of reason would find it debatable whether the petition states a valid
    claim of the denial of a constitutional right and that jurists of reason would find it
    debatable whether the district court was correct in its procedural ruling.’” Clark v.
    Oklahoma, 
    468 F.3d 711
    , 713 (10th Cir. 2006) (emphasis added) (quoting Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000)). “Where a plain procedural bar is present and the
    district court is correct to invoke it to dispose of the case, a reasonable jurist could not
    conclude either that the district court erred in dismissing the petition or that the petitioner
    should be allowed to proceed further.” Slack, 
    529 U.S. at 484
    .
    In his COA application, Mr. Lopez does not challenge, or even address, the court’s
    ruling that his Giglio claim is procedurally barred because he could have raised it on
    direct appeal. He argues only the merits of his Giglio claim.
    The district court’s conclusion that Mr. Lopez’s Giglio claim is procedurally
    barred established an independent basis for denying his § 2255 motion. In its words, the
    procedural bar was “sufficient to deny the Motion.” Appx., Vol. 1 at 23. Because Mr.
    Lopez has not attempted to show that “jurists of reason would find it debatable whether
    the district court was correct in its procedural ruling,” Clark, 
    468 F.3d at 713
    , he has not
    satisfied the COA standard.
    -5-
    III.   CONCLUSION
    For the foregoing reasons, we deny Mr. Lopez’s application for COA and dismiss
    this matter.
    ENTERED FOR THE COURT
    Scott M. Matheson, Jr.
    Circuit Judge
    -6-
    

Document Info

Docket Number: 12-2092

Judges: Lucero, O'Brien, Matheson

Filed Date: 10/17/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024