                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       February 1, 2008
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                      TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 07-4176
 JOE R. ALVARADO,                                 (D.C. Nos. 1:07-CV-00039-PGC and
                                                         1:03-CR-00125-PGC)
           Defendant-Appellant.                                (D. Utah)



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       Joe Alvarado, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1) in order to challenge the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence.

Because Alvarado has failed to satisfy the standards for the issuance of a COA, we deny

his request and dismiss the matter.

                                             I.

       In July 2004, Alvarado was convicted on two counts of possessing

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one



       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).1

As Alvarado was previously convicted of two felony drug convictions, the district court

sentenced Alvarado to a mandatory term of life imprisonment pursuant to 21 U.S.C. §

841(b)(1)(A). On direct appeal, Alvarado challenged the district court’s denial of his

motion to suppress evidence, as well as the constitutionality of the district court taking

into account the existence of his prior convictions in determining his sentence. This court

rejected Alvarado’s arguments and affirmed the judgment of the district court. United

States v. Alvarado, 154 F. App’x. 730 (10th Cir. 2005), cert. denied, 547 U.S. 1047

(2006).

       Alvarado subsequently filed his pro se § 2255 motion asserting a host of claims.

Included were numerous ineffective assistance of trial counsel claims,2 a single claim of

       1
        The jury acquitted Alvarado on one count of being an unlawful user of a
controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3).
       2
         Included were claims that Alvarado’s trial counsel failed to (1) move to suppress
incriminating statements made by Alvarado to the police, (2) move to suppress
Alvarado’s verbal consent to search his girlfriend’s residence, (3) move to suppress
evidence seized from his girlfriend’s apartment, (4) move for resumption of the
suppression hearing after learning of new evidence which placed into question the
credibility of certain police officers, (5) conduct an investigation to make certain that the
indictment was returned by the grand jury in open court, (6) move to have the indictment
dismissed on the ground that it was not returned by the grand jury in open court, (7)
adequately advise Alvarado on the consequences of pleading guilty versus going to trial,
(8) move to have one of the two firearms counts dismissed due to multiplicity, (9) request
an instruction telling the jury that if it convicted Alvarado on one of the firearms counts it
could not convict him on the other, (10) move to have the acquittal on the § 922(g)(3)
firearms charge bar his conviction on the § 922(g)(1) charge, (11) advise Alvarado of his
constitutional right to testify, and further failed to discuss the strategic implications of
testifying versus not testifying, (12) timely request that the district court poll the jury, and
                                                                                   (continued...)

                                               2
ineffective assistance of appellate counsel, a claim that the district court violated

Alvarado’s right to counsel by inadequately inquiring into his request for substitute

counsel, a claim that the district court refused to poll the jury to ensure its unanimity, and

a claim that he was improperly subjected to a mandatory term of life imprisonment. After

allowing the parties to conduct full briefing, the district court issued a thirteen-page order

denying Alvarado’s motion.

       In addressing Alvarado’s claims of ineffective assistance, the district court noted

generally that Alvarado “ha[d] provided no evidence” supporting any of his claims and

instead had made only “conclusory allegations.” ROA, Vol. II, Order at 4. Turning to

counsel’s purported failure to seek suppression of certain evidence, the district court

concluded that Alvarado’s trial counsel “had (and took) the opportunity to challenge the

seizure of evidence and the admissibility of [Alvarado’s] statements at trial” and, in doing

so, “asserted every reasonable argument on . . . Alvarado’s behalf . . . .” Id. at 5. As for

counsel’s purported failure to move to dismiss the indictment on the grounds that it was

not returned in open court, the district court noted there was no evidence to support such a

claim. With respect to the ineffective assistance claims that centered on the purported

multiplicity of the two firearms charges, the district court noted that Alvarado “was only

convicted and punished for one of the § 922(g) counts” and thus “any multiplicity of the


       2
        (...continued)
(13) object to the government’s purportedly late filing of the notice of § 851(a) sentencing
enhancement.


                                               3
counts was clearly harmless . . . .” Id. at 7. Moreover, the district court concluded that

“the elements of the [two firearms] counts differ[ed],” since one “concerned a felon in

possession of a firearm, while” the other “involved an unlawful user of a controlled

substance in possession of a firearm.” Id. With respect to Alvarado’s claims that his trial

counsel failed to adequately advise him of the benefits of pleading versus going to trial,

the district court concluded that “the evidence in the record show[ed] . . . Alvarado was

adequately informed of and involved in the plea process,” id. at 8, and knowingly chose

to reject a plea agreement offered by the government, id. at 9. Similarly, the district court

concluded that the record firmly established that Alvarado’s trial counsel adequately

informed him of his constitutional right to testify on his own behalf. Lastly, the district

court rejected as frivolous Alvarado’s claims that his trial counsel erred in failing to

request that the jury be polled, in failing to assert an objection to Alvarado being

subjected to a mandatory term of life imprisonment, and in failing to object to the

purportedly late filing of the government’s sentencing enhancement notice. More

specifically, the district court noted that the jury was in fact polled, that Alvarado’s

counsel did, in fact, object at the time of sentencing, that there was no legitimate legal or

factual basis for challenging the mandatory sentencing enhancement, and that the

government’s notice of sentencing enhancement was not filed out of time. The district

court also rejected as frivolous Alvarado’s claim of ineffective assistance of appellate

counsel.

       As for Alvarado’s claims that the district court violated his constitutional rights in


                                               4
three respects, the district court rejected all of those claims in the course of analyzing

Alvarado’s ineffective assistance claims. In particular, the district court concluded there

was no merit to Alvarado’s request for substitute counsel, since it was filed on the eve of

trial, “Alvarado presented no evidence of a breakdown in communication between

himself and trial counsel,” and “the court determined . . . Alvarado’s motion had been

filed specifically for the purpose of delaying the proceedings and creating confusion.” Id.

at 8. Further, as previously discussed, the district court noted that it had, in fact, polled

the jury to ensure its unanimity, and it concluded that Alvarado had been correctly

subjected to a mandatory term of life imprisonment.

       Alvarado subsequently filed a notice of appeal, a request for a COA, and a motion

to proceed on appeal in forma pauperis.

                                              II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a federal prisoner may appeal from the denial of a § 2255 motion

only if the district court or this court first issues a COA. 28 U.S.C. § 2253(c)(2). A COA

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

constitutional right.” Id. In order to make that showing, a federal prisoner must

demonstrate “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).


                                               5
       After carefully examining the record on appeal, we conclude, for substantially the

reasons stated in the district court’s very thorough order of dismissal, that Alvarado has

failed to make an adequate showing in this case. That is, we are persuaded that the

district court correctly rejected each of Alvarado’s claims, and that no reasonable jurist

could conclude otherwise.

       The motion for leave to proceed on appeal in forma pauperis and the request for a

COA are DENIED and the appeal is DISMISSED.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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