                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 16, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                      No. 10-3069
                                             (D.C. Nos. 2:09-CV-02576-JWL and
 ALEJANDRO ZAMORA-                                 2:06-CR-20100-JWL-1)
 SOLORZANO,                                               (D. Kan.)

          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      Alejandro Zamora-Solorzano pled guilty to conspiracy to possess with intent

to distribute methamphetamine, in violation of 21 U.S.C. § 841(a) and 18 U.S.C.

§ 2, and using a firearm in furtherance of a drug trafficking felony in violation of

18 U.S.C. § 924(c). He was sentenced to 210 months imprisonment on the

methamphetamine charge and 60 months imprisonment on the firearms charge, to

run consecutively. This court affirmed his sentence on direct appeal. United



      *
        This order is not binding precedent except under the doctrines of law of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.
States v. Zamora-Solorzano, 528 F.3d 1247 (10th Cir. 2008) cert. denied 129 S.

Ct. 522 (2008). Mr. Zamora-Solorzano now seeks a certificate of appealability

(“COA”) in order to challenge the district court’s denial of his amended motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

                                         ***

      We may issue a COA only if the petitioner makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Mr. Zamora-Solorzano 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) (internal quotations omitted). Our inquiry does not require a “full

consideration of the factual or legal bases adduced in support of the [applicant’s]

claims,” but, rather, “an overview of the claims . . . and a general assessment of

their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

      Because Mr. Zamora-Solorzano is a pro se litigant, we construe his

pleadings and other papers liberally. Van Deelen v. Johnson, 497 F.3d 1151, 1153

n. 1 (10th Cir. 2007). Before us, he seeks to press four claims: three alleging

ineffective assistance of counsel and one alleging the district court erred by not

permitting him to file a late reply to the government’s briefing on his amended

motion to vacate. Only three claims are properly before this court, however,

                                         -2-
because in his amended motion to vacate before the district court, Mr. Zamora-

Solorzano did not raise his claim for ineffective assistance of appellate counsel

based on that counsel’s alleged failure to challenge the district court’s evaluation

of Mr. Zamora-Solorzano as a leader for purposes of a sentencing enhancement.

See Matthews v. Workman, 577 F.3d 1175, 1188 n.5 (10th Cir. 2005) (declining to

consider arguments raised for the first time on appeal).

      To establish ineffective assistance of counsel on the two claims Mr.

Zamora-Solorzano did raise with the district court and wishes to pursue before us

— that his trial counsel gave insufficient or incorrect advice at the pleading stage

and that his appellate counsel erred in not pursuing an argument based on United

States v. Whitley, 529 F.3d 150 (2d Cir. 2008) — Mr. Zamora-Solorzano must

show two things: (1) that his “counsel’s representation fell below an objective

standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),

and (2) “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. Our review is “highly deferential” and we “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689.

      In its thorough opinion, the district court applied Strickland and rejected

both of the ineffective assistance of counsel claims Mr. Zamora-Solorzano seeks to

pursue before us, explaining that he failed to establish specifically how his

                                          -3-
counsel’s performance was deficient and also how he was prejudiced. After

reviewing the record, we conclude no reasonable jurist could doubt the correctness

of the district court’s disposition of these claims. Accordingly, and for

substantially the same reasons given by the district court, we deny Mr. Zamora-

Solorzano’s application for a COA to pursue these two claims. 1

      Mr. Zamora-Solorzano’s only remaining argument before us, then, is that

the district court erred when it denied his request to file a late reply brief in

support of his amended motion to vacate, after the district court had already ruled

on the motion. The district court properly treated Mr. Zamora-Solorzano’s request

as a motion for reconsideration, and denied it on the basis that he did not show

either (1) an intervening change in controlling law; (2) the availability of new

evidence; or (3) the need to correct clear error or prevent manifest injustice. See

Fed. R. Civ. P. 59(e); Servants of the Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000). Discerning no error in this disposition we deny COA on this

final argument as well.




      1
         To the extent that Mr. Zamora-Solorzano’s application before us seeks to
fault counsel for failing to pursue a Whitley argument in a petition for certiorari,
rather than on direct appeal, that argument fails for the distinct reason that the
Sixth Amendment does not provide a right to assistance of counsel in connection
with a certiorari petition. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);
Peters v. Cox, 341 F.2d 575, 575 (10th Cir. 1965); United States v. Munoz, 1992
WL 279787, at *2 (10th Cir. 1992) (unpublished).

                                          -4-
      Mr. Zamora-Solorzano’s application for a COA is denied and we dismiss his

appeal.




                                    ENTERED FOR THE COURT



                                    Neil M. Gorsuch
                                    Circuit Judge




                                      -5-
