                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 23, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 11-1410
                                              (D.C. Nos. 1:08-CV-02088-CMA,
 v.                                             1:01-CR-00165-CMA-CBS-1)
                                                          (D. Colo.)
 ALBERT CELIO,

              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Albert Celio, proceeding pro se, 1 seeks a Certificate of Appealability

(“COA”) to appeal from the district court’s denial of his 28 U.S.C. § 2255

motion, which collaterally attacks his conviction and sentence. For the reasons


      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

       After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Celio is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
that follow, we deny his request for a COA and dismiss this matter.

                     I. Background and Procedural History

        Mr. Celio, a former Doctor of Osteopathy licensed in Colorado, was

indicted in 2001 on eight counts of dispensing and distributing a controlled

substance in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The charges arose

out of an investigation of Steve Compton, Mr. Celio’s former friend and patient,

based upon information that Mr. Compton had been illegally writing himself

prescriptions for pain medication. Shortly thereafter, the Drug Enforcement

Administration and the Federal Bureau of Investigation became suspicious of Mr.

Celio and began investigating him and using Mr. Compton as a cooperating

source. Using Mr. Compton, investigators arranged for a meeting between Mr.

Celio and an undercover police officer—Robert Hogan. Mr. Celio wrote multiple

unnecessary Percocet prescriptions for Detective Hogan over a short period of

time.

        Of the eight counts on which Mr. Celio was indicted, four were dismissed.

The government brought to trial the remaining four counts—“correspond[ing]

with . . . four Percocet prescriptions [Mr.] Celio wrote for [Mr.] Hogan in [his]

clinic[’s] parking lot.” United States v. Celio, 230 F. App’x 818, 822–23 (10th

Cir. 2007). Mr. Celio focused primarily on attacking the sufficiency of the

evidence, and “theorizing that he was engaged in an honest but misguided

‘reverse sting’ to see if [Mr.] Hogan was providing pills to [Mr.] Compton.” Id.

                                        -2-
at 823. After a three-day trial, the jury found Mr. Celio guilty of all four counts,

and he was sentenced to twenty-seven months’ imprisonment, followed by three

years of supervised release.

      On appeal, Mr. Celio made challenges to the sufficiency of the evidence

and the jury instructions. We concluded that these challenges were meritless.

Moreover, Mr. Celio raised eight averments of prosecutorial misconduct. We

rejected each ground, finding that “the jury convicted [Mr.] Celio based solely on

the evidence properly before it and that any individual or cumulative error was

harmless.” Id. at 828. We thus affirmed his conviction and sentence.

      Before filing the motion at issue here, Mr. Celio had filed four prior § 2255

motions. The district court had rejected all of them for failure to comply with

federal pleading standards and, more specifically, because the motions did not set

forth in an intelligible and concise fashion the substance of Mr. Celio’s claims.

In his fifth motion, Mr. Celio asserted four “claims.” R. at 29–30 (Mot. to

Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed Feb. 7,

2011). The magistrate judge, however, expressed concerns about Mr. Celio’s

failure, once again, to comply with federal pleading standards. Specifically, the

magistrate judge stated:

                   The fifth iteration of Mr. Celio’s § 2255 Motion continues
             to be overly long, prolix, vague, unspecific, and unclear. Mr.
             Celio’s fifth Motion is 102 pages in length. [He] submitted with
             his Motion approximately 285 pages of exhibits. Mr. Celio’s
             Motion identifies four claims, including Claim 1 alleging

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             ineffective assistance of trial counsel, Harvey Steinberg. [He]
             identifies more than twelve subparts and approximately sixty-
             three “incidents” of ineffective assistance in Claim 1. In Claim
             2, Mr. Celio alleges failure to disclose material evidence by the
             government (“Withheld Evidence”), including five “incidents.”
             In Claim 3, Mr. Celio alleges “Misrepresentation/False evidence”
             presented by the government, including “25 incidences.” [sic] In
             Claim 4, Mr. Celio alleges ineffective assistance of appellate
             counsel [in approximately thirteen incidents].” Overall, Mr.
             Celio has asserted approximately 123 issues.

R. at 516 (citations omitted) (Rec. of U.S. Mag. J., filed May 20, 2011). The

magistrate judge observed that Mr. Celio’s fifth motion was “a jumble of

verbiage, by which [he] appears to challenge almost every aspect of his attorneys’

performance, all adverse rulings by the district court, all of the testimony of the

witnesses, and every aspect of the government’s trial strategy and evidence.” Id.

(internal quotation marks omitted).

      Nonetheless, the magistrate judge ultimately undertook the arduous task of

addressing the merits of Mr. Celio’s motion. First, he methodically considered

and rejected each of Mr. Celio’s allegations of ineffective assistance of trial

counsel on the ground that Mr. Celio had not met his burden under Strickland v.

Washington, 466 U.S. 668 (1984), in showing deficient performance or prejudice.

Morever, he determined that many of Mr. Celio’s claims were procedurally barred

because they were attempts to litigate issues decided on direct appeal by

repackaging them as ineffective-assistance-of-counsel claims.

      Mr. Celio also raised multiple prosecutorial-misconduct claims that were


                                         -4-
largely duplicative of many of his ineffective-assistance-of-counsel claims. The

magistrate judge found these claims “[un]supported by the record.” R. at 542–45.

Additionally, he concluded that they were procedurally barred. See id. at 542

(“Claims 2 and 3 are procedurally barred.”).

      Mr. Celio also raised numerous allegations of ineffective assistance of

appellate counsel. Many of these allegations overlapped with his other claims.

Consequently, the magistrate judge rejected them largely for the same reasons,

see, e.g., id. at 551 (“Mr. Celio’s claims . . . are meritless.”), and concluded that

Mr. Celio had not established deficient performance or prejudice.

      The magistrate judge finally denied Mr. Celio an evidentiary hearing

because “the motion and the files and records of the case conclusively show that

[he] is entitled to no relief,” id. (internal quotation marks omitted); see also 28

U.S.C. § 2255(b), and recommended that the petition be dismissed with prejudice.

      Mr. Celio filed his objections to the magistrate judge’s report and

recommendation. The district court, under de novo review, agreed with the

magistrate judge’s assessment of the substantive deficiencies of Mr. Celio’s

claims—viz., the magistrate judge’s conclusion that the claims were wholly

without merit. Accordingly, the court adopted the report and recommendation

and dismissed Mr. Celio’s § 2255 motion with prejudice. Mr. Celio filed a timely

notice of appeal.




                                          -5-
                                   II. Discussion

      We lack jurisdiction to consider the merits of a § 2255 appeal unless a

petitioner obtains a COA. See 28 U.S.C. § 2253(c)(1)(B). We may only issue a

COA “if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). “This standard requires an applicant to

show that reasonable jurists could debate whether . . . the [motion] should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Yang v. Archuleta, 525 F.3d 925, 928

(10th Cir. 2008). In addition, where the district court denies a § 2255 motion on

procedural grounds, the petitioner also must demonstrate that “jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Mr. Celio’s appellate brief does winnow the issues for review to some

extent. Although he reasserts the same broad “categories” that he did in his

motion before the district court, he reduces the number of challenges with respect

to individual “instances” of error or ineffective assistance of counsel. 2


      2
             In addition, Mr. Celio contends that the district court erred by not
appointing him counsel to litigate his § 2255 motion. Specifically, Mr. Celio
notes that he repeatedly requested appointment of counsel but the requests were
denied because the magistrate judge wanted to “wait and see[] [whether] . . . [he]
ha[d] alleged things that are sufficiently compelling.” Aplt. Opening Br. at 59
(internal quotation marks omitted). However, in the § 2255 context, “[e]xcept
when ‘the district court determines that an evidentiary hearing is required,’ ‘[t]he
                                                                        (continued...)

                                         -6-
      However, after a thorough review of the record and the governing law, we

cannot discern any merit in Mr. Celio’s appellate challenge and his request for a

COA. Where he does raise discernible issues in his brief, Mr. Celio mostly

reasserts in a conclusory fashion the arguments he made before the district court,

and does not adequately point out why the magistrate judge was incorrect in his

recommendation, or how the district court erred in adopting the recommendation

and dismissing his motion. Instead, Mr. Celio continues to piece together in a



      2
        (...continued)
decision to appoint counsel is left to the sound discretion of the district court.’”
United States v. Moya-Breton, 439 F. App’x 711, 716 (10th Cir. 2011) (second
alteration in original) (quoting Engberg v. Wyoming, 265 F.3d 1109, 1122 & n.10
(10th Cir. 2001)). And, as noted, the magistrate judge denied Mr. Celio an
evidentiary hearing because he concluded that Mr. Celio’s motion lacked merit.
Mr. Celio has offered us no reasonable basis for concluding that the district court
abused its discretion in declining to appoint him counsel, and he “has no
constitutional right to [appointed] counsel in a habeas proceeding.” Id.
Consequently, we reject Mr. Celio’s argument.

       Mr. Celio also claims that, “based on cumulative error, [his] conviction
should be reversed.” Aplt. Opening Br. at 56 (capitalization altered). After a
review of the record, it appears that Mr. Celio did not raise this claim before the
district court in his fifth, amended Motion. Where a theory “simply wasn’t raised
before the district court, we usually hold it forfeited” and review it “under . . . the
plain error standard.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28
(10th Cir. 2011). But “the failure to argue for plain error and its application on
appeal . . . surely marks the end of the road for an argument for reversal not first
presented to the district court.” Id. at 1131. Mr. Celio has not asked us to review
this argument for plain error, and we decline to do so. In any event, Mr. Celio’s
cumulative-error arguments are purely conclusory and offer no proper foundation
for review. See, e.g., Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011)
(declining to address a procedural-due-process argument where it was not
adequately briefed).

                                          -7-
disjointed fashion a skeletal set of facts and legal principles that he claims entitle

him to relief, without offering us any specifics as to how the facts and law

together mandate his desired result.

      For substantially the reasons articulated by the magistrate judge in his

thorough and well-reasoned report and recommendation, which was adopted by

the district court, we conclude that Mr. Celio’s motion is without merit. And

reasonable jurists could not debate the district court’s decision to dismiss the

motion with prejudice.

                                   III. Conclusion

      For the foregoing reasons, we DENY Mr. Celio’s request for a COA and

DISMISS this matter.



                                                Entered for the Court


                                                JEROME A. HOLMES
                                                Circuit Judge




                                          -8-
