                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           August 1, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 04-2292
 v.                                               (D.C. Nos. CIV-04-759 and
                                                        CR-99-541 JC)
 VICTOR MANUEL CHAVEZ,                                    (D.N.M.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Defendant-Appellant Victor Manuel Chavez, a federal inmate appearing pro

se, seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence. In order to merit a certificate of

appealability (COA), Mr. Chavez must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). To make such a showing, he must demonstrate that reasonable

jurists would find the district court’s resolution of the constitutional issue

contained in his motion debatable or wrong. Slack v. McDaniel, 529 U.S. 473,

484 (2000). Because we determine that Mr. Chavez has not made such a showing,
we deny a COA and dismiss the appeal.

      On June 24, 2002, the district court sentenced Mr. Chavez to 78 months’

imprisonment to be followed by four years of supervised release. At that time,

Mr. Chavez was serving an Illinois sentence, but had been released to federal

authorities pursuant to a writ of habeas corpus ad prosequendum. Mr. Chavez

spent two years with federal authorities. Because Mr. Chavez would not receive

credit for those two years on his federal sentence (as that time was being credited

to his Illinois sentence, 18 U.S.C. § 3585), he sought a downward departure. The

district court denied his motion for downward departure, but sought to give him

credit by sentencing him to the low end of the Guidelines range (78 months) and

allowing the federal sentence to run concurrent with the state sentence pursuant to

U.S.S.G. § 5G1.3(c).

      Mr. Chavez subsequently filed his § 2255 motion alleging that he had

received ineffective assistance of counsel because he did not receive credit on his

federal sentence for the two years spent in federal custody, and his counsel failed

to press various Interstate Agreement on Detainers (IAD) issues. He maintained

that he was unaware that he would not receive credit for the two years until

presented with a sentence computation in federal prison. The district court denied

the § 2255 motion on the merits, which it alternatively construed as an application

for writ of habeas corpus under 28 U.S.C. § 2241, and dismissed the action with


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prejudice. The district court concluded that Mr. Chavez’s motion was based upon

the mistaken belief that service of his federal sentence began two years later,

rather than when the district court sentenced him (June 24, 2002). Doc. 8 at 2.

      To demonstrate ineffective assistance of counsel, Mr. Chavez must show

deficient performance of counsel and resulting prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984). On appeal, he recognizes that the district

court did attempt to give him credit for the two years in federal custody by

making the federal sentence concurrent with the state sentence he was serving.

Brief and COA at 19. He argues that had counsel invoked the 1994 version of

U.S.S.G. § 5G1.3(c) and ex post facto principles, the district court would have

been required to reduce his sentence (based upon the time already served on the

Illinois sentence). The district court’s implicit rejection of this claim is not

reasonably debatable–the district court was not required to adjust Mr. Chavez’s

federal sentence (for conspiracy to distribute cocaine in New Mexico) by the

amount of his discharged Illinois sentence for a subsequent narcotics offense.

      Accordingly, we DENY the application for COA and DISMISS the appeal.



                                                Entered for the Court


                                                Paul J. Kelly, Jr.
                                                Circuit Judge


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