United States v. Alas

Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 1

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 3, 2023 _________________________________

Christopher M. Wolpert

Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, v. No. 22-7049

(D.C. Nos. 6:19-CV-00219-RAW & NELSON ALAS, 6:17-CR-00049-RAW-2)

(E.D. Okla.) Defendant - Appellant.

_________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

_________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges.

_________________________________ This matter is before the court on Nelson Alas’s pro se request for a certificate of appealability (“COA”). He seeks a COA so he can appeal the denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing no appeal is allowed from a “final order in a proceeding under section 2255” unless the movant first obtains a COA). Because he has not “made a substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and dismisses this appeal. 1

Alas pleaded guilty to a single count of conspiracy to possess with intent to distribute large quantities of methamphetamine. See 21 U.S.C. §§ 841, 846. In exchange for Alas’s guilty plea, the government dismissed numerous additional substantive counts and a count seeking forfeiture of assets derived from the conspiracy. The district court imposed a sentence of 135 months’ imprisonment, a term at the bottom of the advisory range set out in the Sentencing Guidelines. Thereafter, Alas filed the instant § 2255 motion, asserting the government breached the plea agreement by failing to adequately make the district court aware, by the time of sentencing, of any assistance Alas provided “in any ongoing investigation into criminal activity within the Eastern District of Oklahoma and elsewhere, or in the prosecution of another person who has committed a criminal offense.” He also raised two overarching claims of ineffective assistance of counsel.

The district court denied Alas’s request for collateral relief. As to Alas’s claim the government breached the plea agreement, the district court found it had, in fact, been made aware of Alas’s cooperation and that the matter had been vetted at the sentencing hearing. Furthermore, the district court concluded it was well-aware of its authority to vary or depart sua sponte based on any such cooperation and that the record demonstrated Alas was not entitled to such relief. As to Alas’s claims of ineffective assistance, the district court concluded they were inconsistent with facts and the record and, more importantly, at odds with “solemn declarations” Alas made “in open court” during the plea colloquy. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”).

Alas seeks a COA so he can appeal the district court’s denial of his § 2255 motion. The granting of a COA is a jurisdictional prerequisite to an appeal from the denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). To be entitled to a COA, Alas must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether he has satisfied this burden, we undertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Id. at 338. Although he need not demonstrate his appeal will succeed to be entitled to a COA, he must “prove something more than the absence of frivolity or the existence of mere good faith.” Id. (quotations omitted).

Having undertaken a review of Alas’s combined appellate brief and request for COA, the district court’s order, and the entire record before this court pursuant to the framework set out by the Supreme Court in Miller-El, we conclude Alas is not entitled to a COA. In so concluding, this court has nothing to add to the district court’s thorough order denying Alas’s § 2255 motion. Accordingly, Alas’s request for a COA is DENIED and this appeal is DISMISSED.

Entered for the Court Michael R. Murphy Circuit Judge