                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 29, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 11-8073
 v.                                          (D.C. Nos. 1:09-CV-00233-NDF and
                                                   2:05-CR-00104-WFD-1)
 JESUS ALFONSO LEGARDA,                                   (D. Wyo.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant-Appellant Jesus Alfonso Legarda, a federal inmate appearing pro

se, seeks to appeal from the district court’s denial of his motion to vacate, set

aside, or correct sentence. 28 U.S.C. § 2255; 1 R. 208-220. To proceed on

appeal, Mr. Legarda must obtain a certificate of appealability (“COA”), requiring

that he make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). This includes a showing that “reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we find such a showing

lacking, we deny a COA and dismiss the appeal.

      In March 2006, Mr. Legarda pled guilty to participation in a conspiracy to
distribute methamphetamine; in March 2008 he was sentenced to prison for 210

months. His counsel filed an Anders brief on appeal; we dismissed the appeal for

want of a non-frivolous ground and allowed counsel to withdraw. United States

v. Legarda, 339 F. App’x 870, 871 (10th Cir. July 27, 2009). In so doing, we

indicated that the only possible basis for an appeal was that the plea was invalid

or involuntary. But we rejected such a claim, stating:

             In particular, the plea transcript indicates that Mr. Legarda
      entered his plea knowingly, intelligently, and voluntarily pursuant to
      the requirements of Rule 11 of the Federal Rules of Criminal
      Procedure. During the plea colloquy prior to the entry of his guilty
      plea, the court specifically established that Mr. Legarda was
      competent, that he was satisfied with his counsel, that he was
      pleading without coercion, that he was aware of the charges against
      him and the range of punishment, and that he knew what trial rights
      he waived by pleading guilty.

Id. This constitutes a formidable barrier to Mr. Legarda’s present efforts.

      Mr. Legarda first contends that his lawyer failed to object to the sentence

length (which was not, as he had hoped, at the low end of the range); and second,

that his lawyer permitted him to plead guilty without seeking a competency

evaluation to ensure that he was fit to enter a plea and to test whether he was

entitled to a downward departure based on diminished capacity. To succeed on an

ineffective assistance claim, Mr. Legarda must demonstrate deficient performance

and prejudice. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).

      First, Mr. Legarda argues that the sentencing court stated on the record that

the guideline range was 188 to 235 months, and that in the plea agreement the

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government agreed to recommend a sentence at the low end of the range; yet he

was sentenced, without explanation, to 210 months, and his lawyer inexplicably

failed to object. Aplt. Br. 14-19. We note that counsel did alert the district court

that the government had agreed to recommend the low end of the guideline range,

but the district court, applying the advisory guidelines, chose not to follow that

course. Sent. Tr. 149, 156. Regardless, this claim was not raised below and is

waived.

      Second, as for counsel’s failure to move for a competency exam, this claim

is not reasonably debatable. We have reviewed the sentencing transcript and the

district court’s disposition. 1 R. 218-219. Before his plea Mr. Legarda received

two separate evaluations—by Dr. Kahn, his expert, and by Dr. Morrow, the

government’s expert. Both rejected the contention that Mr. Legarda’s epilepsy

diminished his ability to understand the wrongfulness of his acts or to voluntarily

plead guilty. Sent. Tr. 35-42. So did the court. Id. at 150. We have previously

concluded that the record supports a plea that was knowing and voluntary. We

see no serious argument that counsel failed in his duties under the Sixth

Amendment when he chose not to seek a competency evaluation.




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      We DENY a COA, DENY in forma pauperis (‘IFP”) status, and DISMISS

the appeal.

                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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