                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      January 11, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 09-1222
 RAMON MARTINEZ, a/k/a EDI                       (D.C. Nos. 1:04-CR-00429-MSK-1 and
 BURCIAGO-OROSCO,                                       1:08-CV-00455-MSK)
                                                               (D. Colo.)
           Defendant-Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


       Ramon Martinez, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2255 motion to vacate, set aside, or correct sentence. Because Martinez has failed to

satisfy the standards for the issuance of a COA, we deny his request and dismiss the

matter.

                                             I

       “On January 28, 2004, agents of the Bureau of Alcohol, Tobacco, and Firearms . . .

and officers from the Colorado Springs Police Department arrested Adelaida Meza-


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
Chaidez following a controlled purchase of methamphetamine.” United States v.

Martinez, 230 Fed. App’x 808, 810 (10th Cir. 2007). “In exchange for immunity from

prosecution in federal court, Meza-Chaidez agreed to cooperate with law enforcement.”

Id. She “identified [Martinez] as the owner of the drugs” and “explained [Martinez]

operated a large drug-trafficking organization that transported methamphetamine and

cocaine from Phoenix, Arizona to Colorado Springs and Denver, Colorado.” Id.

Subsequent law enforcement investigation, including wiretaps of two telephone numbers

belonging to Martinez, produced additional evidence corroborating Meza-Chaidez’s

allegations.

       A federal grand jury indicted Martinez on four criminal charges: Count 1 –

participating in a continuing criminal enterprise, in violation of 21 U.S.C. § 848; Count 2

– conspiring to possess 500 grams or more of methamphetamine with the intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846; Counts 3 and 4 –

possessing with intent to distribute 500 grams or more of methamphetamine and aiding

and abetting the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. §

2. Prior to trial, the government dismissed Count 4. Martinez’s jury trial commenced on

June 13, 2004. At the conclusion of the evidence, the jury found Martinez guilty of

Counts 2 and 3. The district court sentenced Martinez to 360 months’ imprisonment. On

direct appeal, this court affirmed the judgment of the district court. Martinez, 230 Fed.

App’x at 810, 815.

       On February 29, 2008, Martinez filed a pro se motion to vacate, set aside or correct

                                             2
sentence pursuant to 28 U.S.C. § 2255. On May 19, 2008, the district court appointed

counsel to represent Martinez and directed that counsel review the § 2255 motion and

then proceed upon those claims that had merit. On July 30, 2008, Martinez, through

counsel, filed a supplemental brief in support of his § 2255 motion and requested an

evidentiary hearing on certain ineffective assistance claims. The district court granted

counsel’s request and conducted an evidentiary hearing on February 23, 2009. During the

hearing, Martinez’s counsel ultimately asserted on Martinez’s behalf two claims of

ineffective assistance of counsel: (1) whether Martinez’s trial counsel, an assistant public

defender, conducted an adequate investigation when he failed to review a surveillance

tape of the entrance to a storage facility where the methamphetamine at issue was seized;

and (2) whether Martinez’s trial counsel adequately advised Martinez of possible

sentences at the time the government made a plea offer to Martinez. Martinez’s trial

counsel and other witnesses testified at the hearing.

       On May 11, 2009, the district court issued an order and opinion rejecting

Martinez’s claims of ineffective assistance and denying Martinez’s § 2255 motion. In

considering Martinez’s claim that his trial counsel was ineffective for failing to view the

surveillance tape, the district court “focuse[d] upon whether a failure to review the tape

prejudiced . . . Martinez, and conclude[d] that it did not.” ROA, Vol. 1 at 124. In

particular, the district court noted that “[t]he surveillance tape was recorded over every 72

hours and, due to the location of the camera, did not reveal any activity at” the unit in

question. Id. “Therefore,” the district court concluded, “at most, the surveillance tape

                                              3
would have revealed images of vehicles and pedestrians entering and leaving the [general

rental] facility during the 72 hours prior to the seizure of” the unit in question. Id.

Further, the district court noted that, “because . . . Meza-Chaidez never testified that . . .

Martinez went to the storage unit except on the day it was rented, some 15 days before the

seizure,” “the presence of other people or cars entering and exiting the storage facility

during the 72 hours preceding the seizure would not have rebutted her testimony.” Id.

       As for Martinez’s claim that his trial counsel inadequately advised him of the

possible sentence he would be facing if he proceeded to trial, the district court first noted

that during Martinez’s initial appearance on October 25, 2004, Martinez was “advised by

a magistrate judge as to the penalty range for each charge,” and that “[t]his advisement

included the possibility that a life sentence could be imposed.” Id. at 125. Continuing,

the district court stated:

       Without considering whether [trial counsel’s] subsequent discussions with
       Mr. Martinez should have included the possibility of a 30-year sentence
       upon conviction, the Court finds that Mr. Martinez suffered no prejudice as
       a result of this omission. Mr. Martinez was aware that if he was convicted
       at trial he would be sentenced to a minimum term of imprisonment of 10
       years, and that the actual term could be substantially higher. He was aware
       that the Government’s offer fixed the term at 10 years and that the
       Government might seek to further reduce that prison term if he cooperated.
       Mr. Martinez rejected the offer, but not because he assessed the risk of a
       sentence greater than 10 years or the possibility of a sentence that was
       significantly longer than 10 years. He rejected the Government’s offer
       because it included any term of imprisonment. He wanted a deal similar to
       that which he had obtained in a prior New Mexico case – no prison time in
       exchange for a guilty plea and promise to work as a confidential informant.
       Because Mr. Martinez categorically rejected any plea offer that included a
       term of imprisonment, whether [his trial counsel] advised him of a likely
       term of imprisonment of 20-25 years or the 30 years that was ultimately

                                               4
       imposed, is irrelevant. No advisement as to the upper range of
       imprisonment would have resulted in a different outcome. Given this
       rationale for rejecting the Government’s offer, the Court cannot conclude
       that there is a reasonable probability that Mr. Martinez would have accepted
       the plea offer had [his trial counsel] advised him that upon conviction at
       trial he would possibly face a sentence of 30 years.

Id. at 125-26 (emphasis in original).

       Martinez filed a notice of appeal on May 20, 2009. On May 26, 2009, the district

court issued an order denying Martinez a COA. Martinez has now renewed his request

for COA with this court.

                                             II

       The issuance of a COA is a jurisdictional prerequisite to an appeal from the denial

of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA may be

issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2553(c)(2). To make such a showing, an applicant

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) (citation and internal quotation marks omitted).

       As the district court correctly noted, a criminal defendant claiming a violation of

his Sixth Amendment right to effective assistance of counsel must demonstrate that (1)

counsel’s performance fell below an objective standard of reasonableness; and (2)

counsel’s deficient performance prejudiced the defendant so that, but for counsel’s errors,


                                             5
there was a reasonable probability the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). When we evaluate an

ineffective assistance of counsel claim, “we accept the district court’s underlying factual

findings unless clearly erroneous, and we review de novo whether counsel’s performance

was legally deficient and whether any deficiencies prejudiced the defendant.” United

States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008) (internal quotation

marks omitted).

       In his request for COA, Martinez attempts to combine the two ineffective

assistance claims he raised below, arguing that his trial counsel should have, but failed to,

not only inform him “of the potential 30 year sentence if he went to trial” but also

“evaluate the evidence with [him] so [he] could weigh the benefits and dangers of the

plea offer versus the risk of going to trial.” Aplt. Br. at 5. According to Martinez, he “is

not asking this court to review th[e] portion of the [district court’s] order” that rejects his

claim that his trial counsel was ineffective for failing to review the surveillance tape,

“except as it may show to this Court that [his trial] counsel could not have properly

advised [Martinez] of the quality of the government’s case . . . so that [he] could make a

fully informed decision to accept or reject the government’s [plea] offer and proceed to

trial.” Id. at 9-10. Martinez has not, however, identified any extraordinary circumstances

that would compel us to deviate from our general rule forbidding the review of arguments

presented for the first time on appeal. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d

1136, 1143 (10th Cir. 2009) (“Absent extraordinary circumstances, we will not consider

                                               6
arguments raised for the first time on appeal.”). As a result, we in turn decline to grant

Martinez a COA on this new issue.

       To the extent that Martinez seeks to appeal the district court’s rejection of his

claim that his trial counsel failed to adequately advise him of the possible sentences that

could be imposed if he proceeded to trial, we find no basis for granting a COA on that

claim either. After hearing the evidence presented by the parties on this issue, including

the testimony of Martinez’s trial counsel, the district court found that (a) trial counsel

advised Martinez that the term of imprisonment could be in the range of 20 to 25 years1,

(b) Martinez insisted upon a plea offer that included no prison time, and (c) Martinez

therefore would have, even if advised of the possibility of a thirty-year sentence,

categorically rejected any plea offer that included a term of imprisonment. Notably,

Martinez does not attack as clearly erroneous any of these factual findings. Because these

findings mandate a conclusion that Martinez was not prejudiced by trial counsel’s

allegedly inadequate advice, we conclude that reasonable jurists could not disagree as to

the resolution of Martinez’s ineffective assistance claim.




       1
         Having reviewed the transcript of the evidentiary hearing, we note that trial
counsel testified that he orally advised Martinez of the possibility of a thirty-year
sentence if convicted at trial. ROA, Vol. 2 at 45 (“I mean I told him verbally that it could
be up to 30 years or even life, depending on the relevant conduct. He was well aware –
well aware – that he was looking at a significant amount of time and the 20 to 25 years –
20, 25, 30.”).

                                              7
The application for COA is DENIED and the matter is DISMISSED.




                                     Entered for the Court


                                     Mary Beck Briscoe
                                     Circuit Judge




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