                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSFebruary 4, 2016
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                        No. 15-2199
 v.                                         (D.C. Nos. 1:14-CV-00894-JB-CG &
                                                   1:10-CR-01761-JB-1)
 WILLIS YAZZIE,                                           (D.N.M.)

               Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.


      After Willis Yazzie pleaded guilty to aggravated sexual abuse and waived

his right to appeal he filed a collateral challenge under 28 U.S.C. § 2255, alleging

ineffective assistance of counsel. The district court denied relief. Mr. Yazzie

now asks us to grant him a certificate of appealability (COA) to contest the

district court’s judgment. But we do not see how we can. We may issue a COA

only if the petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). And that much we do not see, even

construing Mr. Yazzie’s pro se filings as liberally as we might.


      *
        This order is not binding precedent except under the doctrines of law of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.
      Mr. Yazzie contends that his counsel acted deficiently by failing to file a

motion to suppress certain incriminating statements he made. But as the district

court explained, Mr. Yazzie has not alleged any facts suggesting that counsel’s

decision was anything other than a reasoned decision based on law and strategy.

Indeed, the record shows that Mr. Yazzie had a chance to consult with a second

attorney about the potential for a suppression motion and that attorney too

concluded there was no legal basis for it. In this light, we see no way in which

we might disagree with the district court’s assessment that Mr. Yazzie has failed

to establish either deficient performance or prejudice, prerequisites both to prove

a Sixth Amendment violation.

      Separately, Mr. Yazzie contends that his counsel should not have allowed him

to enter a plea agreement in which he waived his right to appeal. But he supplies no

factual allegations to support this claim other than repeating his allegation that

counsel failed him by declining to file a motion to suppress. In this way and as the

district court observed, this second claim folds back into the first and fails for the

reasons already identified.

      The application for COA is denied and this appeal is dismissed.

                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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