United States v. Altamirano-Quintero , 379 F. App'x 764 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 24, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-1005
v. (D. Colorado)
LUIS ALTAMIRANO-QUINTERO, (D.C. Nos. 1:08-CV-01882-REB and
1:04-CR-00188-REB-MJW)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Luis Altamirano, appearing pro se, requests a certificate of appealability
(COA) to appeal the district court’s denial of his motion for a writ of habeas
corpus under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to
appeal dismissal of § 2255 motion). Because no reasonable jurist could conclude
that Mr. Altamirano’s § 2255 motion should have been resolved in a different
manner, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny his request for
a COA and dismiss this appeal.
After entering into a plea agreement with the government, Mr. Altamirano
pleaded guilty in the United States District Court for the District of Colorado to
conspiring to possess, with the intent to distribute, 500 grams or more of
methamphetamine. See United States v. Altamirano-Quintero, 511 F.3d 1087,
1089 (10th Cir. 2007). He was sentenced to the mandatory-minimum 10-year
sentence, and unsuccessfully appealed the sentence. See id. On September 2,
2008, he filed a § 2255 motion raising five claims: (1) that the search of his
person was nonconsensual and violated the Fourth Amendment, thereby tainting
the later search of his vehicle, where the drugs were found; (2) that his second
trial attorney (Harvey Steinberg) was ineffective in investigating the
circumstances surrounding the searches, preparing the motion to suppress, and
representing him at the suppression hearing; (3) that his third trial attorney (Mark
Rubinstein) was ineffective in failing to assert the above Fourth Amendment and
ineffective-assistance arguments in support of his motion to withdraw his guilty
plea; (4) that his fourth attorney (Boston Stanton) was ineffective in repeating
Mr. Rubenstein’s failure to raise proper arguments in support of his motion to
withdraw his plea, submitting to the court a deficient motion to withdraw his plea,
and failing to request a downward sentencing departure based on his status as a
deportable alien; and (5) that his appellate attorney (Paul Schwartz) was
ineffective in not having raised on direct appeal his claim that his prior counsel
provided ineffective assistance.
The magistrate judge issued a thorough recommendation that the motion be
dismissed. On December 18, 2009, the district court overruled Mr. Altamirano’s
objections and adopted the recommendation. It also denied Mr. Altamirano a
COA. Of particular relevance to the matter before us, the magistrate judge’s
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report noted that before Mr. Altamirano pleaded guilty, the district court had
found that he had voluntarily consented to the searches of his person, his motel
room, and his vehicle. And the district court pointed out that an attorney is not
ineffective for failing to pursue an invalid argument.
In this court Mr. Altamirano argues (1) that his second attorney was
ineffective; (2) that he did not consent to the search of his person, thereby
tainting the later searches of his car and room; (3) that the canine search of his
vehicle’s interior could not be conducted without his specific consent to that
search; and (4) that the district court improperly failed to consider an affidavit
from his codefendant, submitted before Mr. Altamirano’s sentencing, regarding
Mr. Altamirano’s lack of consent.
“A certificate of appealability may issue . . . only if the applicant [for a
COA] has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional
claims on the merits,” the prisoner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484. If the motion was denied on procedural grounds,
the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show
“that jurists of reason would find it debatable . . . whether the district court was
correct in its procedural ruling.” Id. “Where a plain procedural bar is present and
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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 [motion]
or that the [movant] should be allowed to proceed further.” Id.In assessing whether to grant a COA, we do not consider Mr. Altamirano’s
complaint that the district court failed to address his codefendant’s affidavit,
which had been submitted before sentencing. Mr. Altamirano did not rely on that
affidavit in his district-court § 2255 proceedings, and we will not consider an
issue not raised until appeal. See Pierce v. Shorty Small’s of Branson Inc., 137
F.3d 1190, 1192 (10th Cir. 1998). As for the remaining issues, the magistrate
judge’s recommendation and the district court’s order clearly establish the lack of
merit of Mr. Altamirano’s arguments. No reasonable jurist could debate that the
issues should have been resolved differently.
Accordingly, we DENY a COA and DISMISS the appeal. We GRANT
Mr. Altamirano’s motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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