                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                December 2, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-2141
 v.
                                            (D.C. Nos. 08-CV-946 JEC-LFG and
                                                     05-CR-246-JEC)
 RAMON CAMPOS-GUEL,
                                                         (D. N.M.)
          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.



      Ramon Campos-Guel was convicted of illegally entering the United States

following deportation for an aggravated felony. After his conviction was

affirmed on appeal, he sought to challenge his continued detention in a 28 U.S.C.

§ 2255 motion. Following and in concurrence with a magistrate judge’s report

and recommendation, the district court denied the motion. Mr. Campos-Guel now

seeks to appeal that ruling.




      *
        This order is not binding precedent except under the doctrines of law of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.
      Before we may address the merits of Mr. Campos-Guel’s appeal, he must

first secure a certificate of appealability by making a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). Viewing his pro se filing with the

liberality it is due, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir.

2007), it seems that Mr. Campos-Guel seeks to make this showing in at least three

different ways. None, however, is persuasive.

      First, Mr. Campos-Guel argues that his conviction was secured in violation

of his speedy trial rights. The problem is that the magistrate judge assigned to his

underlying criminal case denied his motion to dismiss the indictment on speedy

trial grounds, and Mr. Campos-Guel never sought review of that ruling before the

district court. By failing to challenge the magistrate judge’s disposition before

the district court, the issue wasn’t preserved for appellate review. And under our

jurisprudence, a § 2255 motion cannot be a substitute tool for raising arguments

that could’ve been raised but were forgone on direct appeal: “Once the

defendant’s chance to appeal has been waived or exhausted, . . . we are entitled to

presume he stands fairly and finally convicted,” United States v. Johnson, 988

F.2d 941, 945 (9th Cir. 1993) (quoting United States v. Frady, 456 U.S. 152, 164

(1982)), such that he may not pursue, under § 2255, arguments that “were or

should have been raised on direct appeal” absent a showing of cause and

prejudice, Hammond v. United States, 408 F.2d 481, 483 (9th Cir. 1969), a

                                         -2-
showing Mr. Campos-Guel has not attempted. Neither is this the only problem

precluding our review. Before a claim alleging pre-indictment delay rises to the

level of a constitutional deprivation (as opposed to the violation of a statutory

right), and thus potentially reviewable under § 2255, see United States v. Taylor,

454 F.3d 1075, 1078 (10th Cir. 2006), the defendant must show he was actually

prejudiced by the government’s delay in indicting him and that the government

was intentionally dilatory. United States v. Colonna, 360 F.3d 1169, 1176-77

(10th Cir. 2004). Mr. Campos-Guel has offered evidence of neither of these

things.

      Second, Mr. Campos-Guel argues that the magistrate judge was without

authority to “to hear or rule on such motions.” While the exact nature of this

complaint isn’t entirely clear, construing it liberally two possibilities occur to us.

On the one hand, it is possible Mr. Campos-Guel seeks to challenge the

magistrate judge’s authority to deny his motion to dismiss the indictment in his

underlying criminal action. An argument along these lines, however, suffers from

defects we’ve already explored. On the other hand, it is possible that Mr.

Campos-Guel seeks to challenge the magistrate judge’s authority to issue a report

and recommendation in his § 2255 action urging the district court to dismiss his

petition for collateral review. But such an argument, too, would be unavailing:

the Federal Magistrate Act expressly authorizes just such reports. See 28 U.S.C.

§ 636(b)(1)(B).

                                          -3-
      Third, Mr. Campos-Guel seeks a certificate of appealability (“COA”) to

contest not just the district court’s substantive rulings on his § 2255 petition, but

also a procedural one. After the magistrate judge issued his report and

recommendation in this § 2255 action and Mr. Campos-Guel didn’t interpose any

objections to it, the district court adopted the report in full. Thereafter, Mr.

Campos-Guel complained that he never received a copy of the magistrate judge’s

report, and sought to “reopen” the case to enable him to interpose objections to

the magistrate judge’s report. The district court denied the motion, and Mr.

Campos-Guel now complains that this ruling was in error. Yet, the district court

based its ruling on the fact that (1) materials mailed by the court are presumed to

be received, see Witt v. Roadway Express, 136 F.3d 1424, 1429-30 (10th Cir.

1998), and (2) Mr. Campos-Guel offered the court no evidence to overcome that

presumption in this case. Now before us, Mr. Campos-Guel offers us no reason

for thinking that the district court’s analysis was in error, let alone suggest a basis

on which we might conclude that he has succeeded in pointing us to a “substantial

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

sort needed to warrant a COA.

      We deny Mr. Campos-Guel’s request for a COA and his related motions for

appointment of counsel and to proceed in forma pauperis, and dismiss this appeal.

Having done so, and thus left without any case in this court, and further seeing no

authority in law or fact permitting us to entertain it in these circumstances, we

                                          -4-
deny Mr. Campos-Guel’s additional motion, apparently raised for the first time

before us, for a transfer from one prison facility to another as moot.

                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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