                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 19, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 12-1461
       v.                                   (D.C. Nos. 1:11-CV-02413-MSK and
                                                 1:07-CR-00188-MSK-11)
ROBERTO LOPEZ,                                           (D. Colo.)

             Defendant - Appellant.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      This matter is before the court on Roberto Lopez’s pro se request for a

certificate of appealability (“COA”). Lopez seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).

Because Lopez 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.

      Following a jury trial, Lopez was convicted of multiple counts of

trafficking cocaine. United States v. Lopez, 408 F. App’x 159, 159-60 (10th Cir.

2011). This court affirmed Lopez’s convictions on appeal. Id. at 162. Lopez
thereafter filed the instant § 2255 motion asserting his trial counsel, Gary Hill,

was ineffective due to Hill’s failure to convey to Lopez a favorable plea offer.

The district court appointed counsel to represent Lopez and held an evidentiary

hearing. Lopez testified at the hearing that he went to trial believing the

government had never made him a plea offer. Hill testified he had conveyed the

plea offer to Lopez. According to Hill, however, Lopez had consistently refused

to consider the plea and had, instead, vigorously asserted his innocence. Robert

Burns, Hill’s paralegal, corroborated Hill’s testimony. Ultimately, the district

court had to make a credibility determination in choosing between this conflicting

testimony. Based on inconsistencies in Lopez’s testimony, and its entirely self-

serving nature, the district court chose to credit Hill’s and Burns’s testimony.

Having concluded Hill did convey the plea agreement to Lopez, the district court

concluded Lopez’s claim of ineffective assistance necessarily failed.

      The granting of a COA is a jurisdictional prerequisite to Lopez’s appeal

from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Lopez 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

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whether Lopez has satisfied his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Id. at 338. Although Lopez 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.

      Having undertaken a review of Lopez’s appellate filings, 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 Lopez is not entitled to a COA.

Lopez does not come close to demonstrating the district court clearly erred in

crediting the testimony of Hill and Burns. Thus, because Hill did, in fact, discuss

the government’s plea offer with Lopez prior to trial, Lopez’s claim of ineffective

assistance necessarily fails. The district court’s resolution of Lopez’s § 2255

motion is not reasonably subject to debate and the issue he seeks to raise on

appeal is not adequate to deserve further proceedings. Accordingly, this court

DENIES Lopez’s request for a COA and DISMISSES this appeal.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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