United States v. Rios-Romero ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 11 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-2271
v. (D.C. Nos. CIV-04-72 and
CR-02-1860 MCA)
YONI ORLANDO RIOS-ROMERO, (D.N.M.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, O’BRIEN and TYMKOVICH, Circuit Judges.
Yoni Orlando Rios-Romero, a federal inmate appearing pro se, seeks to
appeal from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or
correct his sentence. Because we determine that Mr. Rios-Romero has not made a
“substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and
dismiss the appeal.
The parties are familiar with the facts, and we need not restate them here.
Mr. Rios-Romero claims that his counsel was ineffective for failing to object to
certain convictions used to calculate his criminal history category. We do not
think that the magistrate judge’s conclusion that Mr. Rios-Romero had not met his
burden of demonstrating deficient performance or prejudice is reasonably
debatable. See Strickland v. Washington, 466 U.S. 668, 687 (1984). One
challenged conviction was in fact not used to calculate his criminal history, and
the other was apparently valid, notwithstanding Mr. Rios-Romero’s mere
assertion that it had been dropped.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-2-