                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                February 11, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-8028
 v.
                                             (D.C. Nos. 2:10-CV-00238-CAB &
                                                  1:08-CR-00164-CAB-1)
 DERICK EUGENE CORDOVA,
                                                         (D. Wyo.)
          Defendant-Appellant.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Defendant-Appellant Derik Eugene Cordova, proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

Mr. Cordova has also filed a motion to proceed in forma pauperis on appeal.

Having thoroughly reviewed the relevant law and the record, we deny Mr.




      *
              This order is not binding precedent except under the doctrines of law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.
      1
             Because Mr. Cordova is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
Cordova’s application for a COA, deny his request to proceed in forma pauperis,

and dismiss this matter.

                                          I

      Mr. Cordova pleaded guilty in the United States District Court for the

District of Wyoming, without a plea agreement, to conspiracy to possess with

intent to distribute and to distribute 500 grams or more of methamphetamine. He

was sentenced to 216 months’ imprisonment. On direct appeal, Mr. Cordova

argued that his guilty plea was involuntary, that his trial counsel was ineffective,

and that his sentence was procedurally unreasonable. See United States v.

Cordova, 350 F. App’x 285, 287 (10th Cir. 2009). We affirmed Mr. Cordova’s

conviction and sentence, declining to address the ineffective assistance of counsel

claim “[b]ecause further development of the record and an opinion by the district

court would be helpful to our review.” Id. at 290.

      Mr. Cordova then sought § 2255 relief on the following grounds:

ineffective assistance of counsel; involuntariness of his guilty plea; prosecutorial

misconduct; the district court’s lack of jurisdiction over his criminal case; and

recent changes in the United States Sentencing Guidelines (“U.S.S.G.” or the

“Guidelines”) that would require a reduction of his sentence. The district court

denied Mr. Cordova’s § 2255 motion on all grounds and denied him a COA. Mr.

Cordova seeks to appeal that decision.




                                         -2-
                                          II

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

a § 2255 appeal. See 28 U.S.C. § 2253(c)(1)(B); Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49

(2012) (discussing, inter alia, the “clear” jurisdictional language in § 2253(c)(1)).

We will issue a COA only if the applicant makes “a substantial showing of the

denial of a constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th

Cir. 2012) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted);

accord Clark, 468 F.3d at 713. An applicant “satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude that the issues

presented are adequate to deserve encouragement to proceed further.” Dulworth

v. Jones, 496 F.3d 1133, 1136–37 (10th Cir. 2007) (quoting Miller-El v. Cockrell,

537 U.S. 322, 327 (2003)) (internal quotation marks omitted).

                                         III

      Mr. Cordova now seeks a COA from our court based on his counsel’s

alleged ineffective assistance for counseling him to reject the plea agreement

offered by the government and for not more effectively arguing that his

Presentence Investigation Report materially overstated the real significance of his

prior criminal history.




                                         -3-
       Under the framework that the Supreme Court set out in Miller-El, we have

carefully reviewed Mr. Cordova’s combined opening brief and application for

COA as well as the record, 2 including the district court’s thorough order denying

Mr. Cordova’s § 2255 motion. Based upon this review, we conclude that Mr.

Cordova is not entitled to a COA on his claim because he has not made a

substantial showing of the denial of a constitutional right. For substantially the

same reasons articulated by the district court, reasonable jurists could not debate

whether his § 2255 motion should have been resolved in a different manner, and

the issue that he seeks to raise on appeal is not adequate to deserve

encouragement to proceed further.

       Mr. Cordova also seeks to proceed in forma pauperis. However, he has not

demonstrated “the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624,

627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

812 (10th Cir. 1997)) (internal quotation marks omitted). Therefore, we decline

to grant this relief.

                                         IV

       For the foregoing reasons, we deny Mr. Cordova’s request for a COA,




       2
           We have received and given due consideration to Mr. Cordova’s
Supplemental Addendum.

                                        -4-
deny his motion to proceed in forma pauperis, and dismiss this matter.



                                     ENTERED FOR THE COURT


                                     Jerome A. Holmes
                                     Circuit Judge




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