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

                                   FOR THE TENTH CIRCUIT                      December 15, 2015

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

           Plaintiff – Appellee,

v.                                                              No. 15-2165
                                               (D.C. Nos. 1:14-CV-00996-LH-KBM and
 WARREN RIVERA,                                         1:11-CR-01204-LH-1)
                                                              (D. New Mexico)
           Defendant - Appellant.


                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY *


Before KELLY, LUCERO and McHUGH, Circuit Judges.



       Warren Rivera, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his motion for relief under

28 U.S.C. § 2255. We deny the request for COA and dismiss the appeal.

       On April 4, 2011, Mr. Rivera got into an argument with his girlfriend, Valentina

Gonzalez. Ms. Gonzalez called her parents, who were on their way to Mr. Rivera’s

apartment to babysit Ms. Gonzalez’s daughter. Her mother called 911 to report the

dispute. When Ms. Gonzalez’s parents arrived at Mr. Rivera’s apartment building, they


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
found him arguing with Ms. Gonzalez in the street. Ms. Gonzalez’s father confronted

Mr. Rivera, who produced a pistol from his waistband and threatened to kill her father.

Mr. Rivera then grabbed Ms. Gonzalez and walked to a bus stop, leaving her parents

behind. Ms. Gonzalez’s mother again called 911.

       A police officer responding to the call drove to the bus stop, where he found

Mr. Rivera and Ms. Gonzalez. As the officer got out of his vehicle, he saw Mr. Rivera

hand something to Ms. Gonzalez. The officer restrained both Mr. Rivera and Ms.

Gonzalez, and in doing so found a pistol in Ms. Gonzalez’s waistband. She later testified

Mr. Rivera foisted the pistol on her when the officer arrived.

       A grand jury returned a single-count indictment charging Mr. Rivera with being a

felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Before trial, the Government filed a motion in limine, seeking to admit the recorded 911

calls as evidence. In the face of Mr. Rivera’s objections, the government withdrew its

request to admit the first 911 call and the district court denied the Government’s motion

with respect to that recording. The district court admitted the second 911 call at trial, and

the Government played the recording for the jury. While the audio of the second 911 call

was playing, however, two jurors were inadvertently given a transcript of the first 911

call. The error came to light when the jurors sent a note to the court stating, “Two of the

jurors inadvertently saw a transcript of [the] first telephone call to 911. If it was

introduced as evidence, they would like to have that transcript now.” The court responded

with a curative instruction, stating, “The transcript referred to was not admitted in



                                                   2
evidence. It may not be considered in your deliberations.” Trial counsel did not request a

mistrial at that time.

       The jury returned a guilty verdict, and Mr. Rivera’s trial counsel moved for a

mistrial. The district court denied the motion on two grounds: first, that the motion was

not timely filed and, second, that Mr. Rivera had failed to demonstrate any prejudice

resulted from the error that was not cured by the district court’s curative instruction.

Mr. Rivera appealed his conviction, and a panel of this court affirmed in an unpublished

decision. United States v. Rivera, 554 F. App’x 735, 736 (10th Cir. 2014).

       Mr. Rivera then filed this § 2255 motion, alleging four instances of ineffective

assistance of trial and appellate counsel and a claim of cumulative error. The district

court denied relief on all claims and denied a COA. Mr. Rivera now seeks a COA to

appeal only one of the issues raised below: his claim that trial counsel rendered

ineffective assistance by failing to timely move for a mistrial.

       In the context of a § 2255 motion, we will issue a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). A defendant can make such a showing by demonstrating “that reasonable

jurists could debate whether (or, for that matter, agree that) the [motion] 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)

(internal quotation marks omitted). “Such a showing is made only where a prisoner

demonstrates that jurists of reason would find it debatable that a constitutional violation

occurred, and that the district court erred in its resolution.” United States v. Pinson, 584

                                                  3
F.3d 972, 975 (10th Cir. 2009) (internal quotation marks omitted). Unless we grant a

COA, we lack jurisdiction to consider the merits of a § 2255 appeal. See Miller-El v.

Cockrell, 537 U.S. 322, 342 (2003).

       Because Mr. Rivera’s § 2255 motion raises claims of ineffective assistance of

counsel, we must analyze his claim in light of the two-part test for ineffective assistance

established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a

defendant must show (1) “that counsel’s performance was deficient” and (2) “that the

deficient performance prejudiced the defense.” Id. at 687. To satisfy the first element, a

defendant must demonstrate “that counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. For the second element, a defendant “must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. Because a defendant must

satisfy both Strickland elements to succeed on an ineffective-assistance claim, we are free

to consider the elements in any order and need not address both “if the defendant makes

an insufficient showing on one.” Id. at 697.

       Mr. Rivera argues his trial counsel performed deficiently by failing to move for a

mistrial before the jury rendered its verdict. And, indeed, the trial court ruled it lacked the

power to entertain a postverdict motion for a mistrial, relying on the Ninth Circuit’s

decision in United States v. Alvarez-Moreno for the proposition that “Federal Rule of

Criminal Procedure 26.3 ‘does not state explicitly that mistrial can be declared only

before a verdict is rendered or a judgment entered, but that limitation is clearly the

implicit assumption.’” (Quoting 657 F.3d 896, 900 (9th Cir. 2011).) But even if we

                                                  4
determined Mr. Rivera’s trial counsel performed deficiently by failing to move for a

mistrial before a verdict was returned, we cannot conclude Mr. Rivera was prejudiced by

that failure because the district court nevertheless considered the motion for mistrial and

found it without merit.

       Mr. Rivera asserts the district court’s ruling that it lacked the power to grant a

mistrial after the verdict was rendered “implies that the court may have granted the

motion had it been properly raised.” But the record belies this assertion. In ruling on the

motion for mistrial, the district court explained “even if the Court could consider the

Motion, it would have to be denied for the reasons stated in the Memorandum Opinion

and Order addressing Defendant’s Refiled Motion for a New Trial.” In that order, the

district court explained that “Defendant has made no effort to inform the Court what

harm, if any, resulted” from the jurors’ exposure to the unadmitted transcript. The district

court also ruled that “any possible harm was cured by the Court’s response to the Jury:

‘The transcript referred to was not admitted in evidence. It may not be considered in your

deliberations.’” The district court therefore ruled that a mistrial was not warranted.

       The district court’s orders unambiguously demonstrate it would have denied

Mr. Rivera’s motion for a mistrial irrespective of whether it was timely filed.1 Mr. Rivera

was therefore not prejudiced by his counsel’s failure to timely file the motion, because he

cannot demonstrate “the result of the proceeding would have been different” had counsel


       1
         We note that, in the context of an ineffective-assistance-of-counsel claim, the
correctness of the district court’s ruling on the motion for a mistrial is not before us.
Rather, we consider only whether counsel’s allegedly deficient performance—failure to
timely file the motion—had any effect on the outcome.
                                                  5
timely filed. Strickland, 466 U.S. at 694. Because Mr. Rivera cannot demonstrate

prejudice on his Strickland claim, he has not “made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we deny Mr. Rivera’s

request for a COA and dismiss this appeal.

                                                ENTERED FOR THE COURT


                                                Carolyn B. McHugh
                                                Circuit Judge




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