                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 25, 2016
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 15-5062
 v.                                        (D.C. Nos. 4:14-CV-00212-TCK-TLW
                                                and 4:07-CR-00065-TCK-3)
 JUSTIN SPARKS,                                         (N.D. Okla.)

          Defendant - Appellant.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, LUCERO, and McHUGH, Circuit Judges.


      Defendant-Appellant Justin Sparks, appearing pro se, seeks a certificate of

appealability (COA), 28 U.S.C. § 2253(c)(1), to challenge the district court’s

denial of his 28 U.S.C. § 2255 motion. 1 United States v. Sparks, No. 07-CR-65-

TCK, 2015 WL 2137478 (N.D. Okla. May 7, 2015). For a COA to issue, Mr.

Sparks must “demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Mr. Sparks has not met this threshold and we therefore



      1
        We have considered the timeliness of Mr. Sparks’s notice of appeal and
hold that Mr. Sparks has satisfied the prison mailbox rule; the appeal is timely.
Fed. R. App. P. 4(c).
deny a COA, deny IFP status, and dismiss the appeal.

      Mr. Sparks pled guilty to one count of conspiracy with intent to distribute

more than 100 kilograms of marijuana. He later filed a motion to withdraw his

guilty plea, which the district court denied. The court sentenced Mr. Sparks to

210 months of imprisonment and five years of supervised relief. This court

affirmed. United States v. Sparks, 353 F. App’x 121 (10th Cir. 2009).

      Subsequently, Mr. Sparks filed a 28 U.S.C. § 2255 motion requesting the

court hold an evidentiary hearing and vacate his conviction. He alleged that his

former girlfriend, Melissa Oliveras (who had testified against him), had a sexual

relationship with an unnamed member of the prosecution team during his trial.

To support this claim, Mr. Sparks submitted a declaration from his daughter,

Selena Munoz, stating that Ms. Oliveras had told Mr. Sparks’s sister, Lorie

Silvestre (a co-conspirator), about this relationship. Mr. Sparks asserted three

claims for relief: (1) prosecutorial misconduct; (2) a Brady violation based on

failure to disclose the relationship; and (3) ineffective assistance of counsel based

on his attorney’s failure to conduct an interview that would have exposed the

relationship.

      The government responded by arguing Ms. Munoz’s declaration constituted

uncorroborated hearsay. It also provided three declarations of its own. The first

was from Ms. Oliveras, admitting she had told Ms. Silvestre about her

relationship with Philadelphia police officer Ashley David Hoggard, but that Mr.

                                        -2-
Hoggard had no connection to Mr. Sparks’s case. Ms. Oliveras also claimed that

she continued to fear Mr. Sparks because of his ongoing threats to her father. Mr.

Hoggard’s declaration corroborated Ms. Oliveras’s. The final declaration, from

Gayla Stewart, a Victim/Witness Coordinator in the United States Attorney’s

Office for the Northern District of Oklahoma, confirmed Ms. Oliveras’s reports of

Mr. Sparks’s threats to her father from jail.

      The district court concluded that all three claims for relief failed. First,

Mr. Sparks’s claims were based on an affidavit containing inadmissible hearsay,

which the court could disregard. See Neill v. Gibson, 278 F.3d 1044, 1056 (10th

Cir. 2001); United States v. Lowe, 6 F. App’x 832, 837 n.6 (10th Cir. 2001)

(unpublished, cited for its persuasive value). Second, the government presented

evidence from the two persons with firsthand knowledge of the relationship

completely inconsistent with the hearsay affidavit. Because “no real question of

fact and no need to weigh the credibility of witnesses” existed, the court denied

Mr. Sparks’s § 2255 motion, declined to conduct an evidentiary hearing, and

denied a COA. Sparks, 2015 WL 2137478, at *5. The district court’s analysis

and disposition are not reasonably debatable. Mr. Sparks has offered no authority

to suggest that reasonable jurists would find it so.




                                         -3-
We DENY a COA, DENY IFP status, and DISMISS the appeal.




                           Entered for the Court


                           Paul J. Kelly, Jr.
                           Circuit Judge




                            -4-
