                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 MAR 29 2005
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                            No. 04-2249
 JORGE CASTRO,                                   (D.C. Nos. CIV 03-1291 MV/KBM and
                                                            CR-02-544 MV)
        Defendant-Appellant.                                   (D.N.M.)




                                           ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


       Defendant Jorge Castro, appearing pro se, seeks a certificate of appealability

(COA) in order to challenge the district court’s denial of his motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.C. § 2255. Because Castro has failed to make

“a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we

deny his request and dismiss the appeal.

       On June 27, 2002, Castro pled guilty to conspiring to deliver 100 grams or more of

a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B), and 846. On October 11, 2002, the district court sentenced

Castro to sixty months’ imprisonment, the statutory mandatory minimum sentence

applicable to Castro’s conviction. In doing so, the district court concluded that Castro did
not qualify for the “safety valve” provision of the United States Sentencing Guidelines,

U.S.S.G. § 5C1.2.

       On November 10, 2003, Castro filed his § 2255 motion, arguing that his trial

counsel was ineffective for failing to conduct discovery that would have established

Castro’s entitlement to a reduction of sentence under § 5C1.2. The magistrate judge

recommended that Castro’s § 2255 motion be denied. In doing so, the magistrate judge

noted that Castro had “point[ed] to no evidence that would [have] entitle[d] him to the

reduction and merely reiterate[d] the same kind of evidence that” the district court

“considered” at the time of sentencing. Accordingly, the magistrate judge concluded that

Castro had failed “to establish either deficient conduct or prejudice under Strickland v.

Washington, 466 U.S. 688 (1984).” After considering Castro’s objections, the district

court adopted the magistrate judge’s recommendation and dismissed Castro’s § 2255

motion with prejudice.

       To be entitled to COA, Castro must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, Castro

must demonstrate “that 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 v.

Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). After reviewing Castro’s

appellate pleadings and considering the legal framework applicable to his ineffective


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assistance claim, we conclude Castro has failed to establish his entitlement to a COA. In

particular, Castro has not challenged the magistrate judge’s conclusion that he failed to

point to evidence that was not considered by the district court at the time of sentencing

and that would have helped establish his entitlement to the safety valve provision. Thus,

we find no basis for concluding that Castro’s ineffective assistance claim should have

been resolved in a different manner.

       Accordingly, the request for a COA is DENIED and the appeal is DISMISSED.

Appellant’s motion to proceed in forma pauperis is GRANTED.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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