United States v. Vazquez-Pulido
United States v. Vazquez-Pulido
Opinion of the Court
ORDER AND JUDGMENT
Defendant Jose Vazquez-Pulido appeals the district court’s denial of his motion to vacate, set aside, or correct his sentence filed under 28 U.S.C. § 2255.
Finding the hearing testimony of trial counsel more credible than that of defendant, the magistrate judge rejected defendant’s contentions that he was not aware of his right to testify and that counsel prevented him from testifying even though he expressed his desire to do so. Accordingly, the magistrate judge concluded that defendant had not met his burden of establishing that his trial counsel’s performance was constitutionally ineffective, and recommended that the district court dismiss the § 2255 motion. The district court adopted the magistrate judge’s report and recommendation over defendant’s objections and dismissed the motion with prejudice.
Before we can address the merits of this appeal, defendant must obtain a certificate of appealability (COA) by making “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The district court denied defendant’s application for a COA, but we will construe defendant’s notice of appeal as a renewed request for a COA. See Fed. R.App. P. 22(b)(2). To meet his burden under § 2253(c)(2), defendant 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). After carefully reviewing defendant’s counseled brief, the record, and the pertinent law, we conclude that defendant has not met his burden.
“We review the district court’s fact findings in a section 2255 proceeding under the clearly erroneous standard, although the performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo.” United States v. Whalen, 976 F.2d 1346, 1347 (10th Cir. 1992) (quotation omitted). Our independent review of the hearing transcript reveals no error in the district court’s findings of fact or in its ultimate conclusion that trial counsel was not constitutionally ineffective. Because reasonable jurists would not find the district court’s assessment of the constitutional claims debatable or wrong, defendant is not entitled to a COA.
Defendant’s request for a certificate of appealability is DENIED and the 'appeal is DISMISSED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
. Defendant also alleged that his counsel was constitutionally ineffective in pursuing a particular defense strategy, but defendant failed to object to the magistrate judge's report and recommendation as to this claim and failed to raise it on appeal. Therefore, the claim is waived.
Reference
- Full Case Name
- United States v. Jose VAZQUEZ-PULIDO
- Status
- Published