                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 7 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 98-3048
                                                            (D. Kan.)
 LUIS SANCHEZ-FLORES,                                (D.Ct. No. 97-CV-3309)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      After pleading guilty to conspiracy to distribute cocaine in violation of 21


      *
          This order and judgment is not binding precedent except under the doctrines of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.
U.S.C. § 846 and receiving a sentence of 121 months; Luis Sanchez-Flores filed a

pro se Motion to Vacate, Set Aside or Correct a Sentence Pursuant to 28 U.S.C. §

2255, alleging he received ineffective assistance of counsel because his attorney

failed to (1) offer mitigating evidence during his sentencing, (2) object to the

accuracy of his presentence investigation report, and (3) file a direct appeal of his

sentence. Mr. Sanchez also alleges the district court erred in not making an

independent finding regarding the “safety valve” issue he raised at sentencing.

The United States opposed Mr. Sanchez’s § 2255 motion and submitted affidavits

of Mr. Sanchez’s counsel and his interpreter stating Mr. Sanchez chose not to

appeal after being fully informed of his right to appeal his sentence.



      On September 4, 1997, the district court dismissed Mr. Sanchez’s appeal as

untimely on determining it was filed one day after the applicable one-year

limitation period. 28 U.S.C. § 2255. In response, Mr. Sanchez filed a motion to

alter or amend judgment explaining he timely delivered his § 2255 motion to

prison authorities on July 7, 1997. He included a copy of the certified mailing

receipt showing his § 2255 motion was indeed mailed on July 7, 1997.



      By order issued October 3, 1997, the district court treated Mr. Sanchez’s

motion to alter or amend judgment as a motion for reconsideration and took the


                                          -2-
motion for reconsideration under advisement pending receipt from Mr. Sanchez of

a 28 U.S.C. § 1746 declaration concerning the truth of statements made by him in

his § 2255 motion. On November 10, 1997, the district court issued an order

finding Mr. Sanchez had failed to file the declaration and dismissing his § 2255

motion for failure to file the declaration.



      In response to the November 10, 1997 order, Mr. Sanchez filed a “Second

Motion to Alter or Amend Judgment pursuant to Fed. R. Civ. Proc. - 59(a) & (e),”

stating he had filed a declaration. By order dated December 12, 1997, the court

acknowledged that a document entitled “Certificate of Pleadings,” signed by Mr.

Sanchez, had been received by the clerk of court on October 20, 1997, but not

docketed because it did not bear a caption or case number. After reviewing the

certification document, the district court determined it insufficient to meet the

requirements of the ordered declaration. The court nonetheless provided Mr.

Sanchez an opportunity to submit a proper § 1746 declaration, after instructing

him as to the requirements of such a declaration. 1 The court further ordered Mr.

Sanchez to admit or deny each of the statements made in the affidavits of his


      1
         Mr. Sanchez was instructed, in part, to file a declaration in which he stated he
had read and understood the provisions of 18 U.S.C. §§ 1621 and 1623 regarding perjury
and false declarations and that his § 2255 claims and statements were made pursuant to
§ 1746(2).


                                           -3-
counsel and interpreter. Mr. Sanchez was to file the required declaration and

response to the affidavits on or before December 31, 1997. He subsequently

received an extension to January 16, 1998, but failed to file a document.



       On January 29, 1998, the district court issued an order denying Mr.

Sanchez’s § 2255 motion based, in part, on his failure to file the declaration. 2 In

addition, the district court found Mr. Sanchez had failed to demonstrate his

counsel should have filed an appeal, or that an appeal, if taken, would have been

successful. The district court also determined Mr. Sanchez did not provide any

explanation, information or evidence to show the sentence entered by the court

was improper or should have been reduced.



       Mr. Sanchez’s failure to file a declaration as to the truth of his statements

or formally deny the specific statements made in the affidavits of his counsel and

interpreter contravenes the district court’s direct order. Pro se filings are given

liberal construction, but pro se status does not excuse the obligation of any

litigant to comply with the fundamental requirements of the Federal Rules of


       2
          Mr. Sanchez’s notice of appeal was timely filed as to the district court’s January
29, 1998 order addressing his motion for reconsideration. However, Mr. Sanchez did not
file a timely appeal from the district court’s November 10, 1997 order denying his § 2255
motion. We therefore review this appeal only on the district court’s January 29, 1998
order, which we will treat as a ruling pursuant to Fed. R. Civ. P. 60(b).

                                            -4-
Civil and Appellate Procedure and the explicit order of the district court. See

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513

U.S. 1090 (1995).



       This procedural default notwithstanding, Mr. Sanchez’s failure to file the

declaration also undermines his appeal on the merits of his ineffective assistance

of counsel claim. 3 To prevail on his ineffectiveness of counsel claim, Mr.

Sanchez must show counsel’s performance was deficient. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). In this case, Mr. Sanchez’s failure to

produce a sworn statement, affidavit or declaration leaves the record void of any

evidence supporting his claim of ineffective counsel, either during the sentencing

proceeding or in failing to file a direct appeal. The district court properly

concluded Mr. Sanchez did not refute the affidavits of his counsel and interpreter,

after being given notice and opportunity to respond. Those affidavits show Mr.

Sanchez affirmatively and unequivocally stated his wish not to pursue an appeal.

Likewise, insufficient evidence exists in the record to establish any error by the

district court in rendering his sentence. Therefore, the district court’s



       3
        Mr. Sanchez’s failure to file a declaration is sufficient reason to dismiss his
appeal. However, we proceed to the merits of this case only because the district court
addressed them, in its order dismissing the § 2255 motion.


                                            -5-
determination that Mr. Sanchez’s claims are unsupported by the record is not

erroneous, and is supported by the weight of the pleadings and record.



      The district court properly determined Mr. Sanchez’s claims are

unsupported by the record. Accordingly, we conclude Mr. Sanchez’s failure to

file the declaration with the district court is sufficient grounds to deny his § 2255

motion. Moreover, his motion fails to meet the standard on which a certificate of

appealability may be granted. See 28 U.S.C. § 2253.



      We deny the certificate of appealability and DISMISS this appeal.

                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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