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

                               FOR THE TENTH CIRCUIT                      December 6, 2016
                           _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-3036
                                                  (D.C. Nos. 2:14-CV-02475-JWL and
SAMUEL BARAJAS,                                         2:10-CR-20077-JWL-2)
                                                               (D. Kan.)
      Defendant - Appellant.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

       Defendant Samuel Barajas seeks a certificate of appealability (COA) to appeal the

denial of his motion under 28 U.S.C. § 2255 to set aside his conviction and the denial of

his motion for reconsideration. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to

appeal a denial of relief under § 2255). We deny a COA. No reasonable jurist could

have ruled in his favor.

       I.     BACKGROUND

       Defendant was convicted and sentenced to life on drug charges. The conviction

was affirmed on appeal. He then filed in district court a § 2255 motion for relief from his

conviction, contending—among other things—that his pretrial counsel, trial counsel, and

appellate counsel provided ineffective assistance. The district court entered an order

dismissing some of the claims on the pleadings. It appointed counsel for Defendant, held
an evidentiary hearing, and dismissed the remaining claims. Defendant then filed a

motion for reconsideration contending that his attorney for the evidentiary hearing

provided ineffective assistance. The district court denied the motion.

       Counsel on appeal has filed an Anders Brief, and Defendant has filed a response.

See Anders v. California, 386 U.S. 738, 744 (1967). Under Anders if an attorney

examines a case and determines that an appeal desired by his client would be “wholly

frivolous,” counsel may “so advise the court and request permission to withdraw.” Id.

Counsel must submit a brief to both the appellate court and the client, pointing to

anything in the record that could potentially present an appealable issue. See id. The

client may then choose to offer argument to the court. See id. If, upon close examination

of the record, the court determines that the appeal is frivolous, it may grant counsel’s

request to withdraw and dismiss the appeal. See id.

       II.    DISCUSSION

       We grant 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). This standard requires the

defendant to show “that reasonable jurists could debate whether (or, for that matter, agree

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

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). Put differently,

the defendant must show that the district court’s resolution of the constitutional claim

was either “debatable or wrong.” Id.




                                             2
       We have carefully reviewed Defendant’s claims and determined that they are

undebatably meritless. All his claims that he would have accepted a plea bargain (even

one offered before the evidentiary hearing in the § 2255 proceedings) and pleaded guilty

if not for ineffective assistance of counsel are untenable in light of the district court’s

factual finding that Defendant has consistently and adamantly asserted his innocence and

refused any possible plea agreement. See Dist. Ct. Mem. & Order, Feb. 4, 2016 at 12–18,

R. Vol. 1 at 872–878; Mem. & Order, May 8, 2016 at 2–4, R. Vol. 1 at 826–828. And we

agree with the analysis in the district court’s opinions and the Anders brief showing that

Defendant’s other claims are totally without merit. No reasonable jurist could debate the

propriety of denying relief to Defendant.

       III.   CONCLUSION

       We DENY a COA, DISMISS the appeal, and GRANT counsel’s motion to

withdraw.

                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




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