United States v. Perez

FILED
United States Court of Appeals
Tenth Circuit
May 11, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-4009
(D.C. Nos. 2-16-CV-00725-TS and
REBECCA LOUISE PEREZ, 2:14-CR-00435-TS-1)
(D. Utah)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Appellant Rebecca Louise Perez seeks a certificate of appealability to appeal the
district court’s denial of her 28 U.S.C. § 2255 habeas petition.
Appellant pled guilty to possession of methamphetamine with intent to distribute.
She was sentenced to 120 months of imprisonment, the mandatory minimum sentence for
her crime as a result of her prior California state-court conviction for a felony drug
offense. See 21 U.S.C. § 841(a)(1), (b)(1)(B). After sundry proceedings she filed a
petition for habeas corpus claiming ineffective assistance of counsel. The trial court
*
This order is not binding precedent except under the doctrines of law of the case,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.
denied the petition and denied a certificate of appealability. Appellant has petitioned this
court for a COA to challenge the trial court’s order.
Although Appellant raised other claims of ineffective assistance of counsel in her
habeas petition, she seeks to appeal only her claim that counsel was ineffective for failing
to challenge the sentencing enhancement. Construing her pro se pleadings liberally, see
Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991), she presents two theories to
support this claim. First, that her prior conviction was not a felony. Second, that a
subsequent statute reduced that conviction to a misdemeanor.
We find that no reasonable jurist would debate the soundness to the trial court’s
decision. Appellant failed to raise her first argument in her habeas petition, and, even if
we were to consider this untimely argument, the documents she submitted to the trial
court show that she was convicted in the state court of a felony. The state court’s
decision to reclassify her state felony as a misdemeanor—more than a year after she had
entered her plea of guilty and been sentenced in the federal case—does not change that
historical fact. See United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013) (holding
that even an expunged state court conviction still counts as a conviction under § 841(b)
because “expunction under state law, after all, does not alter the historical fact of the
conviction” (internal quotation marks omitted)); see also United States v. Diaz, 838 F.3d
968, 971 (9th Cir. 2016) (rejecting the specific argument that the reclassification of a
California drug offense from a felony to a misdemeanor invalidates a federal
enhancement under § 841).
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We therefore DENY the petition for COA and DISMISS the appeal. Appellant’s
motion to proceed in forma pauperis is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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