                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                        February 2, 2012

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff – Appellee,
v.
                                                             No. 11-8084
                                                 (D.C. Nos. 2:10-CV-00091-CAB and
ROCKY R. GALLEGOS,                                     2:06-CR-00173-CAB-1)
             Defendant – Appellant.                           (D. Wyo.)



            ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Rocky Gallegos, a federal prisoner 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 under 28 U.S.C. § 2255. Exercising jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Gallegos’s application 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       *This order is not binding precedent, except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         Because Mr. Gallegos is proceeding pro se, we construe his pleadings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
                                 I.    BACKGROUND

       On June 12, 2007, Mr. Gallegos pled guilty to one count of conspiracy to possess

with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and

841(a)(1), (b)(1)(B), and one count of use of a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced

Mr. Gallegos to 256 months of imprisonment.

       Mr. Gallegos filed a timely appeal challenging his sentence, which we rejected.

See United States v. Gallegos, 311 Fed. Appx. 97 (10th Cir. 2009) (unpublished).

       On May 14, 2010, Mr. Gallegos filed a motion in the United States District Court

for the District of Wyoming to vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255. In his § 2255 motion, Mr. Gallegos asserted six grounds for relief and 32 claims

of error. The Government filed a timely response to Mr. Gallegos’s motion, to which Mr.

Gallegos had an opportunity to respond. On September 15, 2011, the district court issued

a 51-page order denying Mr. Gallegos’s motion. The district court concluded that several

of Mr. Gallegos’s claims were procedurally barred and that his claims for ineffective

assistance of counsel lacked merit. In the same order, the district court denied Mr.

Gallegos’s application for a COA, concluding that he had not made a substantial showing

of the denial of a constitutional right.

       Mr. Gallegos now seeks a COA from this court, which would enable him to appeal

from the district court’s denial of his § 2255 motion.




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                                   II. DISCUSSION

       A COA is a jurisdictional prerequisite to this court’s review of a § 2255 motion.

28 U.S.C. § 2253(c)(1)(B); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003);

United States v. Gonzalez, 596 F.3d 1228, 1241 (10th Cir. 2010), cert. denied, 131 S. Ct.

172 (2010). To receive a COA, an applicant must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A[n 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) (quotations omitted). In other words, to obtain

a COA, an applicant must show that the district court’s resolution of his constitutional

claims was either “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Mr. Gallegos has failed to satisfy this burden. In his application for a COA, Mr.

Gallegos first contends that the district court erred in “dismissing [his] petition under Fed.

R. Civ. P. 12(b)(6) when it failed to assume all facts pleaded . . . to be true and

considered material not included in the petition.” Aplt. Br. at 3. Mr. Gallegos is correct

that in resolving a motion to dismiss under Rule 12(b)(6), a court must “accept as true all

well-pleaded factual allegations . . . and view [those] allegations in the light most

favorable to the [nonmoving party].” Kerber v. Qwest Group Life Ins. Plan, 647 F.3d

950, 959 (10th Cir. 2011) (quotations omitted). He is also correct that a district court

cannot consider material outside of a complaint when considering whether to dismiss a

claim under Rule 12(b)(6). See Fed. R. Civ. P. 12(d). But the district court did not

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dismiss Mr. Gallegos’s § 2255 motion under Rule 12(b)(6). Instead, in its thorough

order, the court considered all of Mr. Gallegos’s claims and rejected them on either

procedural or substantive grounds. Mr. Gallegos’s arguments concerning Rule 12(b)(6)

are therefore misguided.

       Next, Mr. Gallegos contends, in the alternative, that the district court erred in

“dismissing [his] petition under Fed. R. Civ. P. 56” because the court “failed to give

[him] the required ten-day notice informing [him] . . . of [its] intentions.” Aplt. Br. at 3.

However, the district court did not dismiss Mr. Gallegos’s § 2255 motion under Rule 56

of the Federal Rules of Civil Procedure. Thus, like his arguments with respect to Rule

12(b)(6), Mr. Gallegos’s arguments concerning Rule 56 miss the mark.

       Finally, Mr. Gallegos contends that he “alleged sufficient facts [to] show[] his

decision to plead guilty arose from his counsel’s erroneous advice” and that “[t]he district

court erred in summarily dismissing [his] petition without first having an evidentiary

hearing or conducting further investigations to address [his] claims.” Aplt. Supp. Br. at

1. In other words, Mr. Gallegos argues that the district court should not have rejected his

ineffective assistance of counsel claims without giving him an evidentiary hearing.

       A petitioner for habeas relief is entitled to an evidentiary hearing on a § 2255

motion “[u]nless the motion and the files and records of the case conclusively show that

[he] is entitled to no relief.” 28 U.S.C. § 2255(b). “We review the denial of an

evidentiary hearing in a § 2255 proceeding for an abuse of discretion.” United States v.

Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002).



                                              4
       The district court concluded that the files and records in this case conclusively

demonstrated that Mr. Gallegos was not entitled to relief on his ineffective assistance of

counsel claims.2 Other than his conclusory assertion that the district court should have

held an evidentiary hearing, Mr. Gallegos has not challenged the district court’s ruling.3

A § 2255 petitioner is entitled to an evidentiary hearing when there is a disputed factual

issue. See Anderson v. Atty. Gen. of Kan., 425 F.3d 853, 860 (10th Cir. 2005) (“The

purpose of an evidentiary hearing is to resolve conflicting evidence.”). Mr. Gallegos’s

conclusory assertion does not suggest that there is a dispute of fact warranting an

evidentiary hearing and does not provide us with guidance as to what factual inquiry an

evidentiary hearing might address if granted. Moreover, after reviewing Mr. Gallegos’s

§ 2255 motion, the district court’s order, and the entire record on appeal, we cannot say

that the district court abused its discretion in concluding that an evidentiary hearing was

unnecessary. We therefore reject Mr. Gallegos’s argument that the district court erred in

denying his § 2255 motion without conducting an evidentiary hearing.




       2
        Mr. Gallegos challenges the district court’s failure to provide an evidentiary
hearing only with respect to its denial of his ineffective assistance of counsel claims.
       3
         We have stated that a petitioner’s pro se status does not relieve him of his
obligation to adequately brief his position. See, e.g., Garrett v. Selby, Connor, Maddux &
Janer, 425 F.3d 836, 840-41 (10th Cir. 2005). If that were not true, we would be placed
in the position of being the petitioner’s advocate, which our precedent prohibits. See,
e.g., United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a
pro se litigant’s] arguments liberally; this rule of liberal construction stops, however, at
the point at which we begin to serve as his advocate.”); Garrett, 425 F.3d at 840 (“[T]he
court cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.”).
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                                 III. CONCLUSION

       Mr. Gallegos has failed to make a substantial showing of the denial of a

constitutional right. Additionally, Mr. Gallegos has failed to demonstrate that the district

court abused its discretion in rejecting his § 2255 motion without conducting an

evidentiary hearing. We therefore deny Mr. Gallegos’s application for a COA and

dismiss this matter.


                                                 Entered for the Court

                                                 Scott M. Matheson
                                                 Circuit Judge




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