United States District Court, D. Utah, Central Division
MEMORANDUM DECISION DENYING CERTIFICATE OF
SAM Senior Judge.
Gustavo Hernandez-Lopez requests that the court issue a
Certificate of Appealability (COA) to facilitate his appeal
of this court's denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. Case
No. 2:17-CV-920-DS. Mr. Hernandez-Lopez plead guilty to
“knowingly and intentionally possess[ing] with intent
to distribute 100 grams or more of a mixture or substance
containing a detectable amount of heroin” and was
sentenced to 120 months in prison on August 24, 2016. Case
No. 2:15-cr-00691-DS-1, ECF No. 34, 74, 93. His plea
agreement included an agreement to waive his right to appeal
and stated that he was satisfied with his counsel.
Id.at ECF No. 74. To appeal to the Tenth Circuit
Court of Appeals, Mr. Hernandez-Lopez must obtain a COA. The
district court determines that a COA should not be issued to
for appeal of habeas petitions are set forth in 28 U.S.C.
§ 2253. Section 2253(c) is specific to COA and
establishes that prisoners in habeas corpus and § 2255
cases have the opportunity to appeal only by making a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The COA must be
issued by a circuit (or district) judge, and should clearly
identify the specific issue to be appealed. See 28
U.S.C. § 2253(c)(B). The district court will issue or
deny a COA when it enters a final order adverse to the
applicant, and the judge shall either issue the certificate
or state the reasons for its denial. Fed.R.App.P. 22(b).
See U.S.C.S. Sec. 2254 Cases R 11(a), United
States v. Higley, No. 17-1111 (10th Cir. Mar. 9, 2018)
(unpublished). If issued, the court will state the specific
issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2). If denied, the parties may not
appeal the denial but may seek a certificate from the court
of appeals. Fed.R.App.P. 22(b). Appeal must be timely; a
motion to reconsider a denial does not extend the time to
appeal. Fed.R.App.P. 4(a).
Hernandez-Lopez proceeds pro se and the court has
construed his pleadings liberally. Cummings v.
Evans, 161 F.3d 610 (10th Cir. 1998). Mr. Hernandez-
Lopez claims that his counsel was ineffective for (1)
allowing him to sign an agreement that waived his right to
appeal and for (2) an alleged failure to contest the drug
quantity. United States v. Hernandez-Lopez, 694
Fed.Appx. 651 (10th Cir. 2017). His § 2255 Motion to
Vacate, Set Aside, or Correct Sentence is based on these
claims. Because the district court bases its decision on the
merits of a constitutional claim, the petitioner must show
that “reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). If Mr. Hernandez-Lopez can demonstrate that the
district court's decision was wrong, or merely debatable,
he will properly show that the § 2253(c) requirement is
met. The assessment of the court will involve “an
overview of the claims in the habeas petition and a general
assessment of their merits” and not a full examination.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
construing petitioner's pleadings liberally, the court
finds neither his plea nor his § 2255 motion exhibit a
substantial showing of the denial of a constitutional right.
Mr. Hernandez-Lopez fails to bring an adequate claim of
denial, and the 10th Circuit has denied COA in instances
where petitioners have far more complete claims than Mr.
Hernandez-Lopez has presented. For example, in Bedford v.
Oklahoma, the petitioner argued that he was denied his
constitutional right to due process because (1) he was held
in county jail for a year prior to trial, and the state
failed to present certain evidence to his attorney and
investigator, (2) the Oklahoma district court lacked
jurisdiction over his case, and (3) the police illegally
searched and seized his belongings. The court concluded that
the first claim lacked merit and that the final two claims
“failed to demonstrate cause and prejudice or a
fundamental miscarriage of justice.” Bedford v.
Oklahoma, 2000 U.S. App. LEXIS 11080, 2000 Colo. J.
Hernandez-Lopez claimed only that his counsel was
ineffective. He went no further in his petition, provided no
factual support, failed to point out any violation of
constitutional rights, and failed to state a grievance
directly supported by the Constitution. In United States
v. Trinnaman, the defendant, like Mr. Hernandez-Lopez,
was concerned with ineffective counsel and filed a habeas
petition under § 2255 to vacate, set aside, or correct
his sentence. Unlike Mr. Hernandez-Lopez, the defendant in
Trinnaman brought an actual claim that his due
process rights were violated, pursuant to a COA. The
defendant listed five separate constitutional violation
claims, including violation of the Fifth and Sixth
Amendments, and a Fourth Amendment “issue”
specifically tied to his ineffective counsel claim.
United States v. Trinnaman, 206 Fed.Appx. 834 (10th
Cir. 2007). The court found that the inmate's
constitutional rights were not denied, and specifically, that
he was not denied due process. The majority of his claims
were dismissed for lack of merit. There was nothing in the
record that indicated the judge's ruling was
unreasonable, and the defendant's request for a COA was
denied. Consistent with Slack v. McDaniel,
Trinnaman held that to establish an ineffective
counsel claim, a defendant must show that the counsel's
performance was significantly “deficient and that he
was prejudiced by that deficiency.” Id. at
837. The petitioner in the instant case has not carried this
plea agreements, the United States Supreme Court established
that guilty pleas “must stand” where the
individual entering into the plea is fully aware of the
consequences, including the “actual value of any
commitments made to him by the court, prosecutor, or his own
counsel, ” unless the plea was induced by threats,
misrepresentation, or something improperly related to the
prosecutor's business such as a bribe. Brady v.
United States, 397 U.S. 742, 755 (1970). See
Machibroda v. United States, 368 U.S. 487, 493 (1962).
The petitioner failed to demonstrate that he was not fully
aware of the consequences of entering into the plea
agreement. Furthermore, the court's standard procedure as
well as the procedure employed in this particular case
ensures the defendant is given full opportunity to accept or
reject the agreement and its terms.
Hernandez-Lopez has not demonstrated that the district
court's decision was wrong, or even debatable, thus he
has not shown that the § 2253(c) requirement is met.
Hernandez-Lopez's claims do not have sufficient merit and
he does not claim or demonstrate actual showing of a denial
of a constitutional right. Further, Mr. Hernandez-Lopez's
ineffective counsel claim fails to show that his
counsel's performance was significantly “deficient
and that he was prejudiced by that deficiency.”
upon the foregoing reasons, the Court declines to issue a