United States v. Gutierrez

FILED
United States Court of Appeals
Tenth Circuit
January 31, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 11-2157
v. (D.C. Nos. 1:08-CV-00711-RB-LFG &
2:05-CR-00217-RB-1)
ROBERT SEDILLO GUTIERREZ, (D. New Mexico)
Defendant–Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Defendant, a pro se federal prisoner, seeks a certificate of appealability to
appeal the district court’s denial of his § 2255 habeas petition. A federal jury
found Defendant guilty of possession with intent to distribute 500 grams and more
of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18
U.S.C. § 2. The district court sentenced him to 360 months in prison. This court
confirmed his conviction and sentence on direct appeal. See United States v.
Sedillo-Gutierrez, 263 F. App’x 659 (10th Cir. 2008). In this § 2255 habeas
*
This order is not binding precedent except under the doctrines of law of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.
petition, Defendant claims ineffective assistance of counsel prior to trial, at trial,
at sentencing, and on appeal.
In denying Defendant’s habeas petition, the magistrate judge concluded,
after conducting a full evidentiary hearing, that Defendant failed to show his
attorneys’ conduct fell below the objective standard of reasonableness required by
Strickland v. Washington, 466 U.S. 668 (1984). After conducting a de novo
review, the district court adopted the magistrate judge’s findings and dismissed
Defendant’s petition. The district court did not address whether Defendant is
entitled to a COA. Thus, Defendant must obtain a COA from this court to appeal
the denial of his habeas petition. See 28 U.S.C. § 2253(c)(1); United States v.
Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000) (“Under our Emergency
General Order of October 1, 1996, we deem the district court’s failure to issue a
[COA] within thirty days after filing the notice of appeal as a denial of the
certificate.”).
After carefully reviewing Defendant’s brief and the record on appeal, we
conclude that reasonable jurists would not debate whether the district court erred
in dismissing the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Like the district court, we agree with the magistrate judge’s findings and have
nothing to add to his thorough analysis. We therefore DENY the application for a
certificate of appealability and DISMISS the appeal. We have reviewed
Defendant’s supplementary materials and they do not affect our analysis. We
therefore DENY his motion to supplement the record as moot. We GRANT
Defendant’s motion to proceed in forma pauperis on appeal pursuant to Rule
24(a)(3) of the Federal Rules of Appellate Procedure.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge