                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                           March 20, 2013

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,                              No. 12-8088
                                                  (D.C. Nos. 1:11-CV-00240-CAB and
 v.                                                     1:09-CR-00359-WFD-2)
                                                               (D. Wyo.)
 RICHARD VASQUEZ,

           Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Richard Vasquez, a federal prisoner proceeding pro se,1 seeks a certificate of

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

motion to vacate, set aside, or correct his sentence. Exercising jurisdiction under 28

U.S.C. § 1291, we deny his request for a COA and dismiss this matter.

       *This order is not binding precedent, except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         Because Mr. Vasquez proceeds pro se, his “pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We
cannot, however, “take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Id.
                                   I. BACKGROUND

       In September 2009, the Wyoming Division of Criminal Investigation (“DCI”)

used a confidential informant to buy methamphetamine from Scott Hoffman. Further

investigation led investigators to believe that Mr. Vazquez was Mr. Hoffman’s source.

On October 17, 2009, the DCI obtained and executed a warrant to search Mr. Vasquez’s

home. Agents found six pistols and a rifle, plastic bags, small amounts of cocaine and

marijuana, a scale, and a spoon that tested positive for methamphetamine and cocaine.

       After the search, a DCI special agent interviewed Mr. Vasquez. Mr. Vasquez

admitted that he had cocaine in his home, but not marijuana or methamphetamine, and

that he had shared, but not sold, cocaine and methamphetamine.

       On November 18, 2009, Mr. Vasquez was indicted for conspiracy to traffic in

methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). On

December 3, 2009, he pled not guilty.

       On March 8, 2010, Mr. Vasquez’s jury trial began. After Mr. Vasquez’s statement

to the DCI agent was admitted into evidence, defense counsel moved to suppress the

statement as involuntary. The district court denied the motion, holding that the motion

was untimely and that Mr. Vasquez had not established good cause for failing to file the

motion before trial or for failing to raise an issue regarding voluntariness before the

statement was introduced.

       On March 12, 2010, the jury found Mr. Vasquez guilty. On June 2, 2010, the

district court sentenced Mr. Vasquez to 156 months in prison. On June 8, 2010, the
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district court entered its judgment.

         On June 10, 2010, Mr. Vasquez filed a notice of appeal, arguing that the district

court erred in (1) denying his untimely motion to suppress his statement to the DCI agent,

(2) denying his motion to suppress evidence of possession of cocaine and marijuana, and

(3) admitting statements of his co-conspirators. He also argued that he had received

ineffective assistance of counsel, and that the court had a sufficient record to review this

claim on direct appeal. On March 11, 2011, Mr. Vasquez filed a motion to drop the

ineffective assistance of counsel claim. On April 25, 2011, we affirmed his conviction

and sentence and granted the motion to withdraw the ineffective assistance of counsel

claim.

         On July 11, 2011, Mr. Vasquez filed a 28 U.S.C. § 2255 motion in the district

court to vacate, set aside, or correct his sentence. He argued that (1) he was not mentally

competent to stand trial because of organic brain damage; (2) his memory problems made

it impossible for him to remember his due process rights during his interrogation; and (3)

he was denied equal protection of the law as a mentally disabled person because he did

not have a hearing to determine if he was competent to stand trial.

         On November 29, 2012, the district court entered an order denying Mr. Vasquez’s

§ 2255 motion. The district court noted that Mr. Vasquez could have and failed to raise

any of his § 2255 claims on direct appeal. It then discussed whether Mr. Vasquez had

shown cause for failing to raise the claims. See United States v. McGaughy, 670 F.3d

1149, 1159 (10th Cir. 2012) (“When a defendant fails to raise an issue on direct appeal,
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he is barred from raising it in a § 2255 motion unless he can show cause excusing his

procedural default and actual prejudice resulting from the errors of which he complains,

or can show that a fundamental miscarriage of justice will occur if his claim is not

addressed.” (quotations omitted)).

       The district court noted that (1) Mr. Vasquez’s excuse for failing to raise the

mental incompetence claim was that he “did not know better,” (2) his excuse for not

raising the interrogation claim was that he was “[n]ot [c]apable,” and (3) he made no

excuse for not raising the equal protection claim. ROA at 82-83. The court concluded

that these excuses did not demonstrate sufficient cause to excuse Mr. Vasquez’s failure to

raise the claims and that the claims were therefore procedurally barred. It also denied a

COA.

                                     II. DISCUSSION

       Mr. Vasquez may not appeal the district court’s decision without a certificate of

appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). We may issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To meet this standard, Mr. Vasquez must show that “reasonable

jurists would find” that the district court’s resolution of any constitutional claim was

either “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       When a district court dismisses a § 2255 application on procedural grounds, we

will issue a COA only if the applicant shows that it is “debatable whether the petition
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states a valid claim of the denial of a constitutional right and . . . whether the district court

was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.

       Mr. Vasquez argues that ineffective assistance of counsel claims may be raised for

the first time in a § 2255 proceeding and that it was his counsel’s fault that the

procedurally barred claims were not raised on direct appeal. But Mr. Vasquez did not

make this ineffective assistance claim in his § 2255 application before the district court,

and he “has not provided a ‘reason to deviate from the general rule that we do not address

arguments presented for the first time on appeal.’” United States v. Moya, 676 F.3d

1211, 1213 (10th Cir. 2012) (quoting United States v. Mora, 293 F.3d 1213, 1216 (10th

Cir. 2002)).

       Mr. Vasquez does not otherwise address the district court’s conclusion that his

claims are procedurally barred. Because he has not demonstrated that “jurists of reason

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

Slack, 529 U.S. at 484, he has not satisfied the COA standard.




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                                  III. CONCLUSION

      For the foregoing reasons, we deny Mr. Vasquez’s COA application and dismiss

this matter. Mr. Vasquez’s request to proceed in forma pauperis is denied.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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