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

                             FOR THE TENTH CIRCUIT                             July 18, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-1491
                                                  (D.C. Nos. 1:15-CV-01886-REB &
MATTHEW DEWAYNE JARAMILLO,                             1:12-CR-00210-REB-1)
                                                              (D. Colo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Matthew Dewayne Jaramillo, a federal prisoner, seeks a certificate of appealability

(COA) under 28 U.S.C. § 2253(c)(1) to challenge the district court’s dismissal of his 28

U.S.C. § 2255 petition. He also moves to proceed in forma pauperis (IFP). We decline to

issue him a COA, deny his IFP motion, and accordingly now dismiss the appeal.

                                    BACKGROUND

      A federal grand jury indicted Jaramillo, an enrolled member of the Ute Mountain

Ute Indian Tribe, for several federal offenses after he shot Wilson Jones on the Ute

Reservation in Southwest Colorado while high on methamphetamine. At trial, Jaramillo’s

defense counsel mounted an innocence defense and didn’t raise a voluntary-intoxication

      *
         This order is not binding precedent, except under the doctrines of law of the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.
defense. On May 17, 2013, a jury found Jaramillo guilty on five federal offenses:

(1) assault with intent to commit murder, in violation of 18 U.S.C. §§ 113(a)(1) and

1153; (2) assault with a dangerous weapon with intent to do bodily harm, in violation of

18 U.S.C. §§ 113(a)(3) and 1153; (3) assault resulting in serious bodily injury, in

violation of 18 U.S.C. §§ 113(a)(6) and 1153; (4) being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1); and (5) using a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Ten minutes before the

sentencing hearing began, Jaramillo fired his retained counsel. At the hearing, Jaramillo

filed a “Motion to Vacate Sentence,” alleging ineffective assistance of trial counsel, and

then proceeded pro se at his sentencing. R. vol. I at 314. The district court denied his

motion and sentenced him to 660 months of imprisonment.

       Jaramillo filed a direct appeal, alleging only ineffective assistance of counsel.

United States v. Jaramillo, 568 F. App’x 613, 614 (10th Cir. 2014). Because Jaramillo

didn’t challenge his sentence, this court affirmed it. Id. at 615. But this court did remand

with instructions that the district court vacate its ruling on the merits of Jaramillo’s

ineffective-assistance-of-trial counsel claim so that he wouldn’t be prejudiced in a

collateral proceeding. Id.

       On August 31, 2015, Jaramillo filed a § 2255 motion to vacate or set aside his

sentence alleging ineffective assistance of counsel, complaining that his trial counsel had

failed to raise a voluntary-intoxication defense.1 Though he apparently attempted to make


       1
        Jaramillo also asserts that his trial counsel was ineffective “for failing to
request a jury instruction regarding voluntary intoxication as a defense to counts 1, 2
                                               2
other claims, the district court couldn’t understand what they might be. The district court

entered an order directing Jaramillo to file an amended § 2255 motion within thirty days

clarifying the amorphous claims, or risk having the court consider only his ineffective-

assistance claim. On September 18, 2015, the court received back its order, marked

undeliverable. In a later order, the district court determined that because Jaramillo failed

to notify the court of his change of address in compliance with Local Rule of Practice

5(c) for the United States District Court for the District of Colorado, it would consider

only Jaramillo’s ineffective-assistance claim. It then directed the United States Attorney

for the District of Colorado to file an answer to Jaramillo’s motion.

       After the government responded, the district court denied Jaramillo’s § 2255

motion on grounds that Jaramillo couldn’t show that his counsel had performed

deficiently. Specifically, the court determined that trial counsel’s decision to pursue an

innocence defense, which applied to all of Jaramillo’s charges, rather than a voluntary-

intoxication defense, which only applied to the two charged specific-intent crimes, was a

reasonable trial strategy. The district court also “certifie[d] that any appeal” from its order

“would not be taken in good faith” and denied Jaramillo’s IFP motion. R. at 565 (citing

Coppedge v. United States, 369 U.S. 438 (1962)).

       On December 19, 2016, Jaramillo filed a pro se notice of appeal, but failed to sign

it. Oddly, the notice did bear the signature of an attorney not admitted to practice in the


and 7.” R. vol. I at 496. Though this failure would certainly matter if his trial counsel
had asserted the defense in some fashion, it doesn’t matter once counsel decided
against that defense. After all, one would never submit an instruction for a defense
not made.
                                              3
United States District Court for the District of Colorado. The clerk of court for the United

States Court of Appeals for the Tenth Circuit then instructed Jaramillo that he needed to

sign his notice of appeal. On January 27, 2017, Jaramillo did as requested, furnishing a

new notice of appeal bearing his signature.

                                      DISCUSSION

       At the outset, the clerk of court referred to us the question of the adequacy of

Jaramillo’s notice of appeal, which Jaramillo had initially failed to sign, but soon

corrected. A pro se litigant’s failure to sign a notice of appeal is a curable, non-

jurisdictional defect. Becker v. Montgomery, 532 U.S. 757, 760 (2001). Jaramillo

timely complied with this requirement when reminded to do so, so we find his notice

of appeal adequate.

       Next, before he may appeal, Jaramillo must obtain a COA. 28 U.S.C.

§ 2253(c)(1). To obtain a COA, a petitioner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing,

an applicant must demonstrate ‘that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.’” Allen v. Zavaras, 568

F.3d 1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

       Here, the relevant legal question is whether Jaramillo received ineffective

assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S.

668, 688, 692 (1984), based on his counsel’s not mounting a voluntary-intoxication

                                              4
defense. To prevail, Jaramillo needed to show (1) that his “counsel’s representation fell

below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, and (2) that

his counsel’s deficient performance prejudiced him, id. at 692. If a movant fails to satisfy

either prong, his ineffective assistance claim fails. Id. at 697.

       Voluntary intoxication is a defense to crimes requiring proof of specific intent, not

those requiring proof of only general intent. United States v. Williams, 403 F.3d 1188,

1194 (10th Cir. 2005) (quoting United States v. Klein, 13 F.3d 1182, 1183 (8th Cir.

1994)). Only two of Jaramillo’s charges—assault with intent to commit murder and

assault with a dangerous weapon—required specific intent. Compare United States v.

Cooper, 812 F.2d 1283, 1284 (10th Cir. 1987) (recognizing that assault with intent to

commit murder is a specific-intent crime), and United States v. Waupekenay, 16 F.3d

418, 1994 WL 38673, at *3 (10th Cir. Feb. 7, 1994) (table) (recognizing that assault with

a dangerous weapon is a specific-intent crime), with United States v. Benally, 146 F.3d

1232, 1237 (10th Cir. 1998) (recognizing that assault resulting in serious bodily injury is

a general-intent crime), Williams, 403 F.3d at 1194 (recognizing that felon in possession

of a firearm is a general-intent crime), and Dean v. United States, 556 U.S. 568, 572

(2009) (holding that 18 U.S.C. § 924(c)(1)(A)(iii) doesn’t require separate proof of

intent).

       On the other hand, trial counsel’s chosen innocence defense applied to all of

Jaramillo’s charges. And “[w]here it is shown that a particular decision was, in fact, an

adequately informed strategic choice, the presumption that the attorney’s decision was

objectively reasonable becomes ‘virtually unchallengeable.’” United States v. Nguyen,

                                               5
413 F.3d 1170, 1181 (10th Cir. 2005) (quoting Bullock v. Carver, 297 F.3d 1036, 1047

(10th Cir. 2002)). So the district court’s decision isn’t debatable and we accordingly deny

Jaramillo a COA.2

       Like the district court, we conclude that Jaramillo’s appeal is frivolous. McIntosh

v. United States Parole Comm’n, 115 F.3d 809, 812–13 (10th Cir. 1997) (quoting

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). We deny his IFP motion.




       2
         Jaramillo urges us to find that the district court “abused its discretion,”
Appellant’s Opening Br. at 11, and violated Jaramillo’s constitutional due process
rights “when it denied his pro se motion pursuant to 28 U.S.C. § 2255, without
appointing counsel or liberally applying local and procedural rules,” id. at 2. But the
district court construed Jaramillo’s pleadings liberally, R. vol. I at 557 n.2, gave him
a second chance to clarify his claims that didn’t assert ineffective assistance of
counsel, id. at 524–26, and evaluated his ineffective-assistance-of-counsel claim, id.
at 560. Jaramillo provides no case law holding that enforcing a local rule that
requires litigants to notify the court of a change of address within five days amounts
to a constitutional due process violation. See Appellant’s Opening Br. at 9–11.
Jaramillo then argues that, in the alternative, we should reverse the district court’s
denial of his § 2255 motion and remand it to the district court with instructions to
appoint him counsel. See id. at 11. He supports his argument by citing United States
v. Leopard, 170 F.3d 1013, 1015 (10th Cir. 1999). Id. at 11. In that case, this court
vacated a district court’s denial of a prisoner’s § 2255 motion and remanded with
instructions to appoint counsel because the district court had ordered an evidentiary
hearing. Leopard, 170 F.3d at 1015. And “[i]f an evidentiary hearing is required, the
judge shall appoint counsel for a movant who qualifies for the appointment of
counsel under 18 U.S.C. § 3006A[b].” Id. (quoting Swazo v. Wyoming Dep’t of Corr.,
23 F.3d 332, 333 (10th Cir. 1994)) (alterations in original). Here, the district court
didn’t order an evidentiary hearing, and Jaramillo hasn’t made an argument as to why
the district court would be statutorily compelled to appoint him counsel. So we
decline to remand this issue.
                                             6
                                  CONCLUSION

      For these reasons, we deny Jaramillo a COA and dismiss this appeal. We also

deny his IFP motion.


                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




                                          7
