                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS April 30, 2014
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

 v.                                                     No. 13-2046
                                            (D.C. Nos. 2:12-CV-00670-RB-LAM
 JOSE MANUEL ZAMORA-                             and 2:11-CR-00415-RB-1)
 MARQUEZ,                                                 (D.N.M.)

               Defendant-Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      This is a counseled 28 U.S.C. § 2255 proceeding. Appellant Jose Manuel

Zamora-Marquez seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his motion under § 2255 to vacate, set aside or correct

his sentence. We deny Mr. Zamora-Marquez’s request for a COA and dismiss

this matter.




      *
              This order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
                                         I

      Mr. Zamora-Marquez pleaded guilty to possession with intent to distribute

fifty kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a) and

(b)(1)(C), and 18 U.S.C. § 2. He received a ten-month sentence. After serving

this sentence, Mr. Zamora-Marquez was detained by U.S. immigration authorities.

While in detention, 1 he filed the instant § 2255 motion. Mr. Zamora-Marquez

ultimately was removed from the country by the immigration authorities. A

magistrate judge issued a report and recommendation (“R&R”), finding that Mr.

Zamora-Marquez’s claims were meritless, and (over Mr. Zamora-Marquez’s

objection) the district court adopted the R&R. The court also denied him a COA.

Mr. Zamora-Marquez then filed an application for a COA with this court.

                                        II

                                        A

      A COA is a jurisdictional prerequisite to our review of the merits of an

appeal from a district court’s denial of a § 2255 motion. See 28 U.S.C.

§ 2253(c)(1)(B); United States v. Tony, 637 F.3d 1153, 1157 (10th Cir. 2011).

We will issue a COA “only if the [movant] has made a substantial showing of the


      1
              Because of his immigration-related detention, Mr. Zamora-Marquez
satisfies the in-custody requirement for purposes of statutory jurisdiction under
§ 2255. See United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994); cf.
Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal habeas corpus
statute requires that the applicant must be ‘in custody’ when the application for
habeas corpus is filed.”).

                                        -2-
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard,

the movant must demonstrate that “reasonable jurists could debate whether . . .

the [§ 2255 motion] should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Tony, 637 F.3d at 1157 (omission in original) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)) (internal quotation marks omitted).

                                          B

      In his COA application, Mr. Zamora-Marquez argues that the district court

erred in resolving his ineffective-assistance-of-counsel claim and in concluding

that he failed to establish a violation of his due-process rights. Addressing Mr.

Zamora-Marquez’s ineffective-assistance-of-counsel claim under the rubric of

Strickland v. Washington, 466 U.S. 668, 688 (1984), we conclude that reasonable

jurists could not debate the district court’s conclusion that this claim failed

because Mr. Zamora-Marquez was adequately informed of the immigration

consequences of his guilty plea. And for similar reasons, we also determine that

reasonable jurists also could not debate the district court’s decision to reject his

due-process claim.

                                          1

      With regard to Mr. Zamora-Marquez’s claim of ineffective assistance of

counsel, Mr. Zamora-Marquez argued that his counsel had given him “false

assurance” and “misled” him about the immigration consequences of his guilty

                                         -3-
plea. Aplt. App. at 313 (Pl.’s Objections to R&R, filed Jan. 24, 2013). The

district court, however, found these claims to be without merit. In this regard,

Mr. Zamora-Marquez admitted in an affidavit that he met with his counsel “about

four times before [he] plead[ed] guilty.” Id. at 132 (Aff., dated June 14, 2012).

Mr. Zamora-Marquez also certified in both the plea agreement and at the plea

hearing that his counsel had informed him of the immigration consequences of his

plea. Furthermore, the district court noted that “the plea agreement clearly and

succinctly sets forth the consequences of Mr. Zamora-Marquez’[s] guilty plea.”

Id. at 335 (Order, filed Feb. 13, 2013). In particular, the court found that Mr.

Zamora-Marquez was adequately informed that he faced removal.

      Therefore, the district court concluded that Mr. Zamora-Marquez

failed to establish that his counsel’s representation fell below an objective

standard of reasonableness under Strickland. See 466 U.S. at 688 (requiring a

showing that attorney made errors so serious that attorney’s performance could

not be considered “reasonable[] under prevailing professional norms”); Hill v.

Lockhart, 474 U.S. 52, 58 (1985) (holding that the Strickland test applies to

challenges to guilty pleas based on ineffective assistance of counsel). Given its

determination that Mr. Zamora-Marquez could not prevail on the first prong of

the Strickland test, the court rejected his ineffective-assistance-of-counsel claim.

See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim . . . even to address both components of the inquiry if

                                         -4-
the defendant makes an insufficient showing on one.”). Having thoroughly

reviewed the record, we believe that reasonable jurists could not debate the

district court’s conclusion on this point. Therefore, Mr. Zamora-Marquez is not

entitled to a COA on this claim.

                                         2

      As for Mr. Zamora-Marquez’s due-process claim, he argues that the

language of the plea agreement appears applicable to all criminal cases regarding

aliens and, therefore, is too general to meaningfully inform him of his

immigration consequences. However, the district court found that this claim

lacked merit because his attorney and the court fully informed Mr. Zamora-

Marquez of the consequences of his guilty plea. Beyond the express terms of his

plea agreement, Mr. Zamora-Marquez was informed by the advisements of his

counsel and the court that he faced removal. See, e.g., Aplt. App. at 108, 111

(Plea Agreement, filed Apr. 6, 2011) (including counsel’s certification that he

“fully advised” Mr. Zamora-Marquez of “the consequences of entering into this

[plea] agreement,” which stated that, due to Mr. Zamora-Marquez’s offense,

“removal is presumptively mandatory”); id. at 122 (Tr. of Plea Hr’g, dated Apr. 6,

2011) (noting Mr. Zamora-Marquez’s answer of “Yes” to the court’s inquiry as to

whether he “underst[oo]d that as a citizen of another country, [he] will likely be

deported or removed from the United States”). Furthermore, in his plea

agreement, Mr. Zamora-Marquez expressly agreed to “any immigration

                                        -5-
consequences,” including possible “automatic removal.” Id. at 108. He also

certified in the agreement that he understood the terms of his plea and

“voluntarily agree[d]” to them. Id. at 111. Indeed, as we read it, the record

clearly reveals that Mr. Zamora-Marquez was informed about the consequences of

his guilty plea and his plea was made knowingly, intelligently, and voluntarily.

See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998). Thus, we

conclude that reasonable jurists could not debate the district court’s determination

that Mr. Zamora-Marquez’s due-process claim lacks merit.

                                         III

      Based on the foregoing, and for substantially the reasons stated by the

district court, we DENY Mr. Zamora-Marquez a COA and DISMISS this matter.

                                               Entered for the Court



                                               JEROME A. HOLMES
                                               Circuit Judge




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