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

                                    TENTH CIRCUIT                           October 17, 2012
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 12-2092
                                                 (D.C. Nos. 2:11-CV-00990-MCA-ACT
 MANUEL LOPEZ,                                       and 1:08-CR-02968-MCA-1 )
                                                               (D. N. M.)
        Defendant – Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *                       0F




Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Manuel Lopez, a federal prisoner, seeks a certificate of appealability (“COA”) to

challenge the district court’s order denying his 28 U.S.C. § 2255 motion to vacate, set

aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal

a “final order in a proceeding under section 2255”). Exercising jurisdiction under 28

U.S.C. § 1291, we dismiss this matter.




        * This order is not binding precedent, except under the doctrines of law of the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.
                                 I.      BACKGROUND

       In December 2008, New Mexico State Police Sergeant Nick Ramos stopped Mr.

Lopez’s vehicle for speeding west of Albuquerque, New Mexico. Mr. Lopez was asked

to exit his vehicle. After placing his hands in his pockets, he stated he had a knife in his

pocket. Sergeant Ramos conducted a pat-down of Mr. Lopez and felt a cylindrical

object. Mr. Lopez stated they were pills.

       Sergeant Ramos removed Mr. Lopez’s knife and asked him to empty his pockets.

When Mr. Lopez did so, Sergeant Ramos noticed that his right hand was curled. Mr.

Lopez backed up when asked what was in his hand. Thinking that Mr. Lopez was about

to flee, Sergeant Ramos grabbed Mr. Lopez and braced him against the police cruiser.

       Sergeant Ramos then thought Mr. Lopez attempted to place his hand near his

mouth to ingest something. Sergeant Ramos attempted to choke Mr. Lopez to prevent

him from swallowing, and Mr. Lopez was handcuffed. A cylindrical object was retrieved

from Mr. Lopez’s shirt pocket. Police discovered methamphetamine in the container, and

they discovered more methamphetamine in Mr. Lopez’s trunk after a K-9 alert.

       Mr. Lopez was arrested and charged with possessing with intent to distribute 500

grams or more of methamphetamine. He moved to suppress the methamphetamine

evidence, and the district court held a hearing at which Sergeant Ramos testified. After

viewing video of the stop, the district court found that Mr. Lopez had not placed his hand

near his mouth. Nonetheless, the court accepted as credible Sergeant Ramos’s testimony

that he believed, from his perspective behind Mr. Lopez, that Mr. Lopez had placed his
                                             -2-
hand near his mouth and was ingesting something. The court held that Sergeant Ramos

could then constitutionally take and open the cylindrical container from Mr. Lopez’s shirt

pocket “to ensure [Mr. Lopez’s] safety and to anticipate a possible overdose.” Appx.,

Vol. 1 at 21. The court denied Mr. Lopez’s motion to suppress.

       On December 7, 2009, Mr. Lopez signed a written plea agreement, which reserved

his right to appeal the denial of the motion to suppress. Judgment was entered on

February 24, 2010, and Mr. Lopez appealed. On August 4, 2010, the Government

provided Mr. Lopez with information concerning Sergeant Ramos’s disciplinary history

and the credibility of his testimony in other proceedings. He moved for the voluntary

dismissal of his appeal, and the Tenth Circuit granted his motion on November 8, 2010.

       On November 7, 2011, Mr. Lopez filed a § 2255 motion arguing that, under Giglio

v. United States, 405 U.S. 150 (1972), the Government was required and had failed to

disclose in a timely manner the information regarding Sergeant Ramos’s disciplinary

history and credibility. A magistrate judge recommended denying the § 2255 motion on

two separate bases, which the federal district court adopted.

       First, the magistrate judge noted that Mr. Lopez offered no explanation as to why

he had voluntarily dismissed his direct appeal, when his Giglio claim could have and

should have been raised on direct appeal. See United States v. Warner, 23 F.3d 287, 291

(10th Cir. 1994) (“A defendant’s failure to present an issue on direct appeal bars him

from raising the issue in his § 2255 motion, unless he can show cause excusing his

procedural default and actual prejudice resulting from the errors of which he complains,
                                            -3-
or can show that a fundamental miscarriage of justice will occur if his claim is not

addressed.”). The magistrate judge also observed that Mr. Lopez “made no showing of

cause and prejudice” for failing to raise the issue on direct appeal. Appx., Vol. 1 at 23

(quotations omitted). Accordingly, the court held that Mr. Lopez was procedurally

barred from presenting his Giglio claim through a § 2255 motion.

       Second, although the procedural ground was “sufficient” to deny the § 2255

motion, the court addressed the merits of Mr. Lopez’s Giglio claim. Id. The court

acknowledged that the discipline and credibility information suggested that Sergeant

Ramos “may appear to be somewhat overzealous in his traffic stops[] and inconsistent in

his court testimony in prior cases.” Id. at 26. But the court concluded that Sergeant

Ramos’s “testimony in this case was corroborated by the videotape recording and the

district court, having viewed the videotape and observed Sergeant Ramos while

testifying, found him to be a credible witness.” Id. at 26-27. The court found it “difficult

to imagine how” the credibility and discipline evidence “would have led to a different

result” for Mr. Lopez’s motion to suppress. Id. at 27. It thus denied the § 2255 motion.

                                  II.     DISCUSSION

       Mr. Lopez seeks a COA to challenge the district court’s order denying his § 2255

motion. He argues that we should grant a COA on the Giglio issue.

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

denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,

1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). If the district court’s decision
                                            -4-
rested on procedural grounds, we will issue a COA only if the applicant “demonstrate[s]

both that ‘jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.’” Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (emphasis added) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Slack, 529 U.S. at 484.

       In his COA application, Mr. Lopez does not challenge, or even address, the court’s

ruling that his Giglio claim is procedurally barred because he could have raised it on

direct appeal. He argues only the merits of his Giglio claim.

       The district court’s conclusion that Mr. Lopez’s Giglio claim is procedurally

barred established an independent basis for denying his § 2255 motion. In its words, the

procedural bar was “sufficient to deny the Motion.” Appx., Vol. 1 at 23. Because Mr.

Lopez has not attempted to show that “jurists of reason would find it debatable whether

the district court was correct in its procedural ruling,” Clark, 468 F.3d at 713, he has not

satisfied the COA standard.




                                              -5-
                               III.   CONCLUSION

       For the foregoing reasons, we deny Mr. Lopez’s application for COA and dismiss

this matter.

                                        ENTERED FOR THE COURT



                                        Scott M. Matheson, Jr.
                                        Circuit Judge




                                          -6-
