United States v. Cortes-Ponce
Opinion
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Raul Cortes-Ponce, a federal prisoner, seeks a certificate of appealability (COA) to challenge the denial of his
On June 23, 2014, in accordance with a written plea agreement, Cortes-Ponce pleaded guilty to one count of conspiring to possess with intent to distribute 500 grams or more of methamphetamine, in violation of
Cortes-Ponce initially objected to the PSR’s drug quantity calculations, but then withdrew his objection after the parties agreed to jointly recommend a substantially below-guideline-range sentence of 192 months. The government filed a motion recommending that sentence, and the district court announced its intent to accept the recommendation. Later the district court sentenced Cortes-Ponce to 192 months. We enforced Cortes-Ponce’s appeal waiver against his attempted direct appeal,
In March 2016, Cortes-Ponce filed a § 2255 petition in the District of Kansas. He alleged that his counsel had been ineffective in allowing the inclusion of the cocaine into his sentencing, because the cocaine-related conduct was not part of the same course of conduct. The district court denied the petition without holding a hearing and did not issue a COA. Cortes-Ponce appealed.
To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.”-
We consider only the first of those two prongs and find that Cortes-Ponce cannot satisfy it. To satisfy
Strickland,
a counsel’s performance must be “outside the wide range of professionally competent assistance.”
*552
Cortes-Ponce’s counsel initially made an objection to the drug-quantity calculations, but withdrew it when he obtained assurances that his client would likely receive 192 months in prison, a sentence 100 months shorter than the bottom of the 292-to-365-month range that Cortes-Ponce was otherwise facing. Even if we assume for the sake of argument that the objection to the inclusion of the cocaine amount would have ultimately been successful if not withdrawn, making the objection would still have been a risky proposition. The government had another card to play: it could have filed a
Cortes-Ponce has not made the required substantial showing for a COA. And because the record conclusively shows that Cortes-Ponce is not entitled to relief, the district court was correct in finding that an evidentiary hearing was not necessary.
CONCLUSION
We deny Cortes-Ponce a COA and a hearing and dismiss this appeal.
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.
. Cortes-Ponce has already been granted in forma pauperis status for this proceeding.
. Cortes-Ponce is proceeding pro se, so we construe his pleadings liberally, but we do not serve as his advocate,
Yang v. Archuleta,
. In his brief, Cortes-Ponce makes a number of new arguments and allegations that he did not raise in his initial petition at the district court. Failure to raise issues in the district court "generally constitutes waiver,”
Rios v. Ziglar,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Raul CORTES-PONCE, Defendant-Appellant
- Status
- Unpublished