                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 27, 2011
                     UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 11-4068
 ISIDRO RIOS-TAPIA,                           (D.C. No. 2:10-CV-01149-TS and
                                                    2:08-CR-00141-TS-2)
          Defendant-Appellant.                            (D. Utah)



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


      Isidro Rios-Tapia seeks a certificate of appealability (COA) pursuant to 28

U.S.C. § 2253(c)(1) in order to challenge the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside or correct sentence. Because Rios-

Tapia has failed to satisfy the standards for the issuance of a COA, we deny his

request and dismiss the matter.

                                          I

      Rios-Tapia was indicted on March 12, 2008, on a single count of

possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
§ 841(a)(1) and (b)(1)(A). On September 17, 2009, Rios-Tapia, represented by

counsel, entered a plea of guilty to the single count charged in the indictment. On

April 5, 2010, the district court sentenced Rios-Tapia to a term of imprisonment

of 120 months, the statutory mandatory minimum sentence applicable to his

offense. Rios-Tapia did not file a direct appeal.

      On November 18, 2010, Rios-Tapia filed a pro se motion pursuant to 28

U.S.C. § 2255 to vacate, set aside, or correct sentence. In that motion, Rios-Tapia

asserted “that his counsel rendered ineffective assistance during the [district

court] proceedings . . . .” ROA, Vol. 1 at 30. To begin with, Rios-Tapia asserted,

his “[c]ounsel misinformed [him prior to entry of his guilty plea] about his

qualification for the ‘Safety Valve’ even though counsel had all the information

regarding [his] prior conviction.” 1 Id. at 22. “Alternatively,” Rios-Tapia argued

that his counsel erroneously predicted that Rios-Tapia “would get a sentence

between 4 and 7 years,” id. at 25, and “by predicting a lower sentence that was

not allowed by statute,” prevented Rios-Tapia from “reach[ing] or negotiat[ing] a

different type of plea agreement with the government.” Id. at 22. In addition,

Rios-Tapia alleged that, after he was sentenced, his counsel misled him regarding

the availability of “a sentence reduction based on an alleged ‘Rule 16,’” and


      1
        More specifically, Rios-Tapia alleged that his “counsel told him that he
qualified for what [counsel] called the ‘safety valve,’ and because of that, [Rios-
Tapia]’s sentence most likely would be 7 years.” ROA, Vol. 1 at 28 (emphasis in
original).

                                          2
misled him “and his sister regarding [his] sentence and time to be served.” Id. at

31.

      On March 21, 2011, the district court issued a memorandum decision and

order denying Rios-Tapia’s motion. In doing so, the district court rejected on the

merits Rios-Tapia’s arguments that his counsel was ineffective for allegedly

misinforming him as to (a) the availability of safety valve relief, and (b) the

likely length of his sentence. Further, the district court concluded that Rios-

Tapia’s remaining two claims of ineffective assistance “ha[d] been waived by

[Rios-Tapia] based on the collateral appeal waiver contained in his plea

agreement.” Id. at 70.

      On April 11, 2011, Rios-Tapia filed a notice of appeal. Rios-Tapia has

since filed with this court a pleading entitled “Petitioner’s Memorandum of Law

in Support of Preliminary Informal Brief,” which we construe as his opening brief

and application for COA.

                                          II

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In other words, the denial of a § 2255 motion may be appealed only

if the district court or this court first issues a COA. 28 U.S.C. § 2253(c)(2). In

turn, a COA may be issued “only if the applicant has made a substantial showing

of the denial of a constitutional right.” Id. To make that showing, the applicant

must demonstrate “that reasonable jurists could debate whether (or, for that

                                          3
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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted).

      Notably, Rios-Tapia makes no attempt to satisfy these standards. Indeed,

Rios-Tapia makes no mention in his opening brief of any of his original claims of

ineffective assistance of counsel. Instead, he asserts in his opening brief a host of

new issues: (1) the district court “failed to properly advise [him] of his

constitutional and Rule 11 rights,” Aplt. Br. at 11; (2) he entered into an invalid

waiver of his right to appeal his sentence, id. at 34; (3) the government’s evidence

was insufficient as a matter of law to convict him, id. at 36; (4) the indictment

was defective and insufficient for several reasons, id. at 41; (5) the sentence

imposed by the district court was greater than necessary to effectuate the goals of

18 U.S.C. § 3553(a), id. at 45; and (6) his “eneligibility [sic] for minimum

security confinement, drug program, and prerelease custody as a result of his

status as a deportable alien constituted significant mitigating factors that should

have been considered by the [district] court,” id. at 54.

      Given Rios-Tapia’s sole focus on these newly asserted issues, we conclude

he has failed to establish his entitlement to a COA on any of the ineffective

assistance of counsel claims that were asserted below in his § 2255 motion.

Moreover, having conducted our own independent review of the record in general,


                                           4
and the district court’s memorandum decision and order in particular, we are not

persuaded that reasonable jurists could debate whether Rios-Tapia’s § 2255

motion should have been resolved in a different manner or that the issues raised

therein were adequate to deserve encouragement to proceed further.

      The request for a COA is DENIED and the matter is DISMISSED.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Chief Judge




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