United States v. Belin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 15, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 16-2082
v. (D.C. Nos. 1:13-CV-00532-MV-RHS
& 1:10-CR-02213-MV-1)
WILLIAM BELIN, (D. N.M.)
Defendant-Appellant.
_________________________________
ORDER
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. William Belin shot his girlfriend and was convicted in federal
court on various charges. After unsuccessfully appealing, Mr. Belin moved
to vacate his sentence under 28 U.S.C. § 2255. The district court denied
this motion, and Mr. Belin wants to appeal. To do so, he seeks a certificate
of appealability and leave to proceed in forma pauperis. We decline to
issue a certificate of appealability, dismiss the appeal, and deny leave to
proceed in forma pauperis.
I. Standard for a Certificate of Appealability
To obtain a certificate of appealability, Mr. Belin must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2012). Mr. Belin would meet this standard only if “jurists of
reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
II. Claims of Ineffective Assistance of Counsel
In his motion, Mr. Belin alleges ineffective assistance of counsel
based on
 pretrial counsel’s inadequate investigation and encouragement
to make a plea offer, and
 trial counsel’s failure to object to the introduction of other
evidence, failure to object to jury instructions, failure to assert
intoxication as a defense, and allowance of due process
violations.
Mr. Belin acknowledges that his motion in district court was improperly
prepared and lacking in facts. Appellant’s Opening Br. at 4-5, 8-9. We
agree. Because the motion was facially deficient, there are no reasonable
grounds for appeal. 1
A. The Standard for Ineffective Assistance of Counsel
To prevail on his ineffective-assistance claims, Mr. Belin must show
that
1
Mr. Belin states that the motion was prepared by a jailhouse lawyer
who did a poor job. But there is no right to effective assistance of counsel
in proceedings under § 2255. United States v. Snitz, 342 F.3d 1154, 1158
(10th Cir. 2003).
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 his counsel’s representation “fell below an objective standard
of reasonableness” and
 “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
B. Claims Involving Pretrial Counsel
For a short period of time before trial, Mr. Belin was represented by
an assistant public defender. According to Mr. Belin, the assistant public
defender improperly failed to investigate the case and encouraged a plea
offer. But another attorney replaced the assistant public defender, and Mr.
Belin went to trial with the new attorney. Mr. Belin does not say how he
was prejudiced by the assistant public defender’s failure to investigate or
encouragement to offer a guilty plea. Thus, we decline to issue a certificate
of appealability on these claims.
C. Claims Involving Trial Counsel
All of the claims involving trial counsel are patently invalid.
1. Failure to Object to Admission of Evidence About Prior
Assaults
Mr. Belin contends that his trial attorney was ineffective for failing
to object to evidence of two prior assaults. At trial, the district court
addressed admissibility even though defense counsel had not objected. In
addressing the issue, the court ultimately concluded that the evidence was
admissible. In light of this ruling, an objection would have proven
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fruitless. As a result, we decline to issue a certificate of appealability on
this claim.
2. Failure to Object to Jury Instructions
Mr. Belin also claims that trial counsel was ineffective in failing to
object to jury instructions. But Mr. Belin does not identify the problematic
jury instructions. Without identification of the problematic instructions, we
have nothing to review. See United States v. Fisher, 38 F.3d 1144, 1147
(10th Cir. 1994). Accordingly, this claim does not merit a certificate of
appealability.
3. Abandonment and Failure to Assert Intoxication as a
Defense
Mr. Belin argues that his trial counsel was ineffective for failing to
raise intoxication as a defense. Trial counsel pursued a different theory:
accident. Mr. Belin does not say why an intoxication theory would have
been better than trial counsel’s theory that the shooting had been
accidental. Accordingly, we decline to issue a certificate of appealability
on this claim.
4. Due Process Violations
Mr. Belin also alleges a hodge-podge of due process violations, but
does not tie them to trial counsel’s conduct. Thus, Mr. Belin is not entitled
to a certificate of appealability on this part of the ineffectiveness claim.
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III. Leave to Proceed in Forma Pauperis
Mr. Belin also seeks leave to proceed in forma pauperis. We deny
this request in light of the absence of any reasonably debatable claims. See
28 U.S.C. § 1915(a)(3).
IV. Disposition
We decline to issue a certificate of appealability, dismiss the appeal,
and deny leave to proceed in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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