Scribd Logo
Upload

Welcome to Scribd!

  • 36 views

    United States v. Cervantes, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Danny Ray Cervantes' application for a Certificate of Appealability to appeal the district court's dismissal of his 28 U.S.C. § 2255 habeas petition. The district court had dismissed three of Cervantes' claims as having already been litigated on direct appeal and found that his ineffective assistance of counsel claim failed because his attorney's decision to pursue a plea agreement instead of filing a brief in support of a motion to suppress was a reasonable strategic choice. The Court of Appeals agrees with the district court's assessment and finds that Cervantes has not made a substantial showing that his constitutional rights were denied.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Cervantes, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    36 views6 pages
    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Danny Ray Cervantes' application for a Certificate of Appealability to appeal the district court's dismissal of his 28 U.S.C. § 2255 habeas petition. The district court had dismissed three of Cervantes' claims as having already been litigated on direct appeal and found that his ineffective assistance of counsel claim failed because his attorney's decision to pursue a plea agreement instead of filing a brief in support of a motion to suppress was a reasonable strategic choice. The Court of Appeals agrees with the district court's assessment and finds that Cervantes has not made a substantial showing that his constitutional rights were denied.

    Original Description:

    Filed: 2008-02-27 Precedential Status: Non-Precedential Docket: 07-2167

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Danny Ray Cervantes' application for a Certificate of Appealability to appeal the district court's dismissal of his 28 U.S.C. § 2255 habeas petition. The district court had dismissed three of Cervantes' claims as having already been litigated on direct appeal and found that his ineffective assistance of counsel claim failed because his attorney's decision to pursue a plea agreement instead of filing a brief in support of a motion to suppress was a reasonable strategic choice. The Court of Appeals agrees with the district court's assessment and finds that Cervantes has not made a substantial showing that his constitutional rights were denied.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    36 views6 pages

    United States v. Cervantes, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Danny Ray Cervantes' application for a Certificate of Appealability to appeal the district court's dismissal of his 28 U.S.C. § 2255 habeas petition. The district court had dismissed three of Cervantes' claims as having already been litigated on direct appeal and found that his ineffective assistance of counsel claim failed because his attorney's decision to pursue a plea agreement instead of filing a brief in support of a motion to suppress was a reasonable strategic choice. The Court of Appeals agrees with the district court's assessment and finds that Cervantes has not made a substantial showing that his constitutional rights were denied.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    You are on page 1of 6

    FILED

    United States Court of Appeals


    Tenth Circuit

    February 27, 2008


    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
    TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    DANNY RAY CERVANTES,

    No. 07-2167
    (D.C. No. CIV-05-974-LH-LAM)
    (D.N.M.)

    Defendant-Appellant.

    ORDER DENYING CERTIFICATE OF APPEALABILITY *

    Before OBRIEN, EBEL, and GORSUCH, Circuit Judges.

    Danny Ray Cervantes, a federal prisoner proceeding with retained counsel,


    seeks to challenge his imprisonment in a 28 U.S.C. 2255 habeas petition. The
    district court dismissed the petition, concluding that three of the four claims had
    already been litigated on direct appeal and any ineffective assistance of counsel
    claim failed because the attorneys performance was not deficient. Mr. Cervantes
    now seeks before us a certificate of appealability (COA) to appeal the district

    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.

    courts order, and for substantially the same reasons set forth by the district court,
    we deny the application for a COA. 1
    *

    In October 2001, a federal grand jury in the District of New Mexico


    indicted Mr. Cervantes on the charge of possession with intent to distribute 100
    kilograms or more of marijuana, in violation of 21 U.S.C. 841(a)(1) and
    (b)(1)(B). His trial counsel filed a motion to suppress evidence, but because of
    plea negotiations with the government, did not file a supporting brief. The
    district court denied the motion without a hearing, and in January 2002 Mr.
    Cervantes changed his plea to guilty pursuant to a plea agreement with the
    government.
    Mr. Cervantes later filed a motion to withdraw his plea, claiming that he
    was induced into the plea agreement by the opportunity to cooperate and receive a
    downward departure, and that this opportunity and concomitant departure
    recommendation did not materialize. The district court denied the motion as well
    as Mr. Cervantess motion for a downward departure and sentenced Mr. Cervantes
    to 188 months imprisonment and 5 years supervised release.
    Mr. Cervantes appealed to this court, arguing that (1) the government
    breached the plea agreement, (2) the district court abused its discretion in denying
    1

    Mr. Cervantes did not file a separate application for a COA, but his
    notice of appeal is deemed a renewed application for a COA pursuant to Federal
    Rule of Appellate Procedure 22(b)(2).
    -2-

    his motion to withdraw his plea, and (3) the district court abused its discretion by
    not considering his cooperation when imposing his sentence. United States v.
    Cervantes, 115 F. Appx 1, 2-3 (10th Cir. 2004). This court affirmed the
    judgment of the district court.
    In his current Section 2255 petition, Mr. Cervantes charges that (1) he was
    coerced and forced into pleading guilty under the terms of his plea agreement
    because he was not given the opportunity to cooperate, (2) the government
    breached the plea agreement, (3) the district court improperly denied his motion
    to withdraw his plea, and (4) his trial counsel provided ineffective assistance by
    pursuing the plea agreement instead of filing a brief in support of his motion to
    suppress. The district court dismissed Mr. Cervantess Section 2255 petition,
    concluding that the first three issues were raised on direct appeal and trial
    counsels performance was not deficient. The court denied the petition for a COA
    and granted Mr. Cervantes leave to proceed on appeal in forma pauperis.
    We may issue a COA only if the petitioner makes a substantial showing of
    the denial of a constitutional right, 28 U.S.C. 2253(c)(2), such that reasonable
    jurists would find the district courts assessment of the constitutional claims
    debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Based on
    our independent review of the record in this case, we agree with the district court
    that Mr. Cervantes has not met this threshold.

    -3-

    Section 2255 motions are not available to review issues previously


    considered and disposed of on direct appeal or to test the legality of matters
    which should have been raised on direct appeal. United States v. Warner, 23
    F.3d 287, 291 (10th Cir. 1994). This court has reviewed and denied three of Mr.
    Cervantess four Section 2255 claims on direct appeal. Regarding his claim of
    coercion, we have already found that his guilty plea was knowing and voluntary.
    See Cervantes, 115 F. Appx at 10. We have also found, in response to Mr.
    Cervantess arguments, that the government did not breach the plea agreement, id.
    at 6-8, and that the district court did not err in denying his motion to withdraw his
    guilty plea, id. at 10. Because we have already considered and disposed of these
    claims, we will not consider them again in a Section 2255 motion.
    In order to succeed on his remaining ineffective assistance of counsel
    claim, Mr. Cervantes must show that his attorneys advocacy fell below an
    objective standard of reasonableness, and that, but for counsels deficient
    representation, the result in his case would have been different. Strickland v.
    Washington, 466 U.S. 668, 687-88, 694 (1984). To overcome the presumption of
    objective reasonableness, the defendant [has] the burden of showing that
    counsels action or inaction was not based on a valid strategic choice. Bullock v.
    Carver, 297 F.3d 1036, 1047 (10th Cir. 2002).
    Mr. Cervantes implies that his trial counsel was ineffective for failing to
    file a brief in support of his motion to suppress and instead pursuing a plea
    -4-

    agreement. Counsels affidavit indicates that he did not support the motion to
    suppress with a brief because he was, at the time, negotiating a plea agreement for
    Mr. Cervantes and the government indicated that they would not support a
    downward departure for cooperation if Mr. Cervantes pursued the suppression
    issue. See Klipstine Aff. Counsel asserts that, based on this representation, he
    made the decision to focus on a motion for downward departure based on
    cooperation. Although the opportunity to cooperate did not ultimately
    materialize, and counsel mightve, with the benefit of 20-20 hindsight, made a
    different decision, Mr. Cervantes has not provided any evidence that counsels
    decision was anything other than a strategic choice that was reasonable, even
    apparently wise, from counsels perspective at the time of the alleged error and
    in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381
    (1986) (emphasis added). Because Mr. Cervantes has not satisfied the first prong
    of the Strickland standard, his ineffective assistance of counsel claim fails. 2
    *

    Mr. Cervantes also agues that the district court should not have denied
    his request for discovery and an evidentiary hearing. However, the court
    dismissed the motion without prejudice, with leave to renew the request, because
    Mr. Cervantes did not articulate reasons in support of his discovery request or
    requests for specific documents, and because his evidentiary hearing motion was
    premature. See 28 U.S.C. 2255(b); Rules Governing 2255 Cases in the U.S.
    Dist. Cts. 6(b). Mr. Cervantes never renewed his motion, so the responsibility for
    this outcome lies with him, and reasonable jurists could not disagree that the
    district court was correct to deny the original motion without prejudice.
    -5-

    Mr. Cervantes has failed to show that the district courts disposition of his
    Section 2255 petition is debatable or incorrect, therefore his request for a COA is
    denied and this appeal is dismissed.

    ENTERED FOR THE COURT

    Neil M. Gorsuch
    Circuit Judge

    -6-

    You might also like