                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 September 1, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 09-4064
 RAOUL MORENO,                                (D.C. Nos. 08-CV-00861-DAK and
                                                    06-CR-00384-DAK-2)
          Defendant-Appellant.                             (D. Utah)



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Raoul Moreno, a federal prisoner appearing pro se, seeks a certificate of

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

2255 motion. Moreno also requests to proceed in forma pauperis (“IFP”). We

deny the COA and the request to proceed IFP.

                                          I

      A jury convicted Raoul Moreno of distributing five grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and of carrying a

firearm during and in relation to a drug trafficking crime, in violation of 18



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
U.S.C. § 924(c)(1)(A). On May 10, 2007, the district court sentenced Moreno to

120 months’ imprisonment followed by 60 months’ supervised release. Moreno

appealed, arguing that the district court erred in instructing the jury. On March

28, 2008, we affirmed the district court.

      On November 7, 2008, Moreno, appearing pro se, filed a 28 U.S.C. § 2255

motion. The motion alleged two grounds for relief: (1) ineffective assistance of

counsel for not objecting “to the fact the government failed to present sufficient

evidence at trial [that Moreno] used a firearm”; and (2) ineffective assistance of

counsel for not objecting “to the fact the that the government never presented any

narcotic[s] at trial, and [because counsel] used coercion in order to prevent

[Moreno] from testifying on his own behalf, denying [Moreno] a fair trial.” R.

Vol. I, Doc. 1 at 5.

      On February 5, 2009, the district court denied Moreno’s § 2255 motion.

Moreno filed a timely notice of appeal and a request for a COA.

                                            II

      The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A

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

denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To make this showing,

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

that matter, agree that) the petition should have been resolved in a different

                                            2
manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and

internal quotation marks omitted).

      In his application for a COA and his present briefing, Moreno argues that

his counsel provided ineffective assistance by: (1) failing to move to suppress the

firearm; (2) “failing to object to the insufficient evidence to support the

conviction for carrying a firearm”; (3) by “not preserving [Moreno’s] Sixth

Amendment rights to be found guilty beyond a reasonable doubt of each element

of the crime . . . ”; and (4) “failing to object to the imposition of a five year

consecutive sentence [based on Moreno’s conviction under 18 U.S.C. §

924(c)(1)(A)].” COA Application at 2. Because Moreno proceeds pro se, we

construe his pleadings liberally. Garrett v. Selby Connor Maddux & Janer, 425

F.3d 836, 840 (10th Cir. 2005).

      For Moreno to merit a COA based on the alleged ineffectiveness of his

counsel, he must make a substantial showing that his counsel was ineffective. To

ultimately establish ineffective assistance of counsel, Moreno must show both that

his counsel’s performance was deficient, and that this deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review

of counsel’s performance is “highly deferential,” and “we indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption

                                            3
that, under the circumstances, the challenged action might be considered sound

trial strategy.” United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006)

(quotation omitted).

      All of Moreno’s arguments assume that: (1) his counsel was ineffective in

failing to prevent the admission of evidence related to the firearm conviction; and

(2) there was insufficient evidence to support his firearm conviction. Both

assumptions are unwarranted.

      First, Moreno’s argument that counsel should have moved to suppress the

firearm is factually incorrect. The firearm was not admitted into evidence. R.

Vol. I, Doc. 7 at 2 (“[T]he gun was not recovered by the police and was not

introduced into evidence.”).

      Second, Moreno’s argument that counsel failed to object to the sufficiency

of the evidence related to the firearm is incomplete. Moreno provides no basis

upon which his counsel could have objected to the admission of the evidence.

According to trial testimony, a law enforcement officer saw Moreno retrieve what

appeared to be a firearm from his pocket and replace it before the drug

transaction. During the drug transaction, the law enforcement officer saw the

outline of the firearm in Moreno’s pocket. After the drug transaction, the law

enforcement officer heard the sound of a safety being engaged on a firearm. Our

review of this evidence supports the conclusion that a reasonable jury, viewing

the evidence in the light most favorable to the government, could have found

                                         4
Moreno guilty of carrying a firearm during and in relation to a drug trafficking

crime beyond a reasonable doubt. See United States v. Garza, 566 F.3d 1194,

1202 (10th Cir. 2009) (applying this standard to review the sufficiency of the

evidence for a conviction under 18 U.S.C. § 924(c)(1)(A)).

      Our review of the record reveals no basis for an objection by Moreno’s

counsel to the admission of the officer’s observations. Without further

clarification, Moreno cannot overcome the strong presumption that his counsel

was pursuing a sound trial strategy. Because the evidence supporting Moreno’s

conviction was sufficient, Moreno’s counsel was not ineffective when he failed to

challenge the sufficiency of the evidence. Similarly, because the evidence related

to the firearm was sufficient to support the firearm conviction, Moreno’s rights

under the Sixth Amendment were not violated. Lastly, because there was

sufficient evidence to convict Moreno under 18 U.S.C. § 924(c)(1)(A), it is

unclear what basis Moreno’s counsel would have had to object to the imposition

of the sentence under this statute.

      After reviewing Moreno’s application for a COA, his present briefing, and

the record on appeal, we agree with the district court and conclude that no

reasonable jurist could conclude that Moreno made a substantial showing of a

violation of his constitutional rights. We conclude that he has failed to establish

his entitlement to a COA. Because we deny Moreno’s COA, we also deny his

motion to proceed IFP.

                                          5
     Moreno’s request for a COA is DENIED, and this matter is DISMISSED.

Moreno’s motion to proceed IFP is DENIED.


                                         ENTERED FOR THE COURT


                                         Mary Beck Briscoe
                                         Circuit Judge




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