                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 16, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-7036
                                            (D.C. Nos. 6:11-CV-00056-RAW and
 v.
                                                  6:09-CR-00030-RAW-1)
                                                        (E.D. Okla.)
 GIOVANNI MARTINEZ,

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Giovanni Martinez pleaded guilty to charges of possession with intent to

distribute cocaine and being a felon in possession of a firearm. In his plea

agreement, Mr. Martinez stipulated that he was a career offender as contemplated

by United States Sentencing Guideline § 4B1.1. The district court found him to

be exactly that and sentenced him to 188 months’ imprisonment. Mr. Martinez

filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255, which the district court denied. He now seeks to appeal the district

court’s order.


      *
         This order is not binding precedent except under the doctrines of law of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.
      To do that, to appeal the court’s order, Mr. Martinez must first obtain a

certificate of appealability (“COA”). For our part, we may grant a COA only if

Mr. Martinez makes a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To do this, he 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). Because Mr. Martinez

proceeds in this court pro se, we review his pleadings with special solicitude.

      Bearing these standards in mind, we hold Mr. Martinez ineligible for a

COA. Mr. Martinez argues the government breached the plea agreement by

seeking and obtaining revisions to his presentence report to reflect the drug he

possessed was cocaine base, not cocaine. As the district court explained,

however, Mr. Martinez was ultimately subject to the same advisory guideline

sentencing range either way given his status as a career offender. The nature of

the drugs made no difference. Neither is there any indication that the court’s

independent sentencing judgment was affected by the revision. Whether or not

the government breached the agreement, Mr. Martinez fails to suggest any way in

which he was prejudiced. As the district court also observed, Mr. Martinez’s

allegation that his counsel was constitutionally ineffective for failing to challenge

the revision to the presentence report fails for the same reason — the inability to

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show counsel’s conduct prejudiced him. See Strickland v. Washington, 466 U.S.

668, 691-92 (1984) (party must establish prejudice to prevail on ineffective

assistance of counsel claim).

      Because Mr. Martinez cannot show the district court’s resolution of his

§ 2255 motion is debatable, the application for a COA is denied. We grant Mr.

Martinez’s motion to proceed in forma pauperis and dismiss this appeal.


                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




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