                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                October 31, 2012
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 12-6203
                                              (D.C. Nos. 5:12-CV-00249-M and
 ESTEBAN DIAZ,
                                                    5:07-CR-00094-M-1)
                                                        (W.D. Okla.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.



      After the government charged Esteban Diaz with distributing and

attempting to distribute methamphetamine, the parties struck a deal. Under the

deal’s terms, Mr. Diaz agreed to plead guilty to a single count of attempted

distribution rather than face trial on all the charges against him. Now in this 28

U.S.C. § 2255 motion, Mr. Diaz alleges that his lawyer gave him inaccurate

advice in the plea process, promising him that the government would seek a

sentence reduction under Rule 35. See Fed. R. Crim. P. 35(b)(1) (“Upon the



      *
         This order is not binding precedent except under the doctrines of law of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.
government’s motion made within one year of sentencing, the court may reduce a

sentence if the defendant, after sentencing, provided substantial assistance in

investigating or prosecuting another person.”). This inaccurate advice, Mr. Diaz

maintains, amounted to ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). For its part, the district court agreed

that counsel performed deficiently but it ruled against Mr. Diaz on Strickland’s

prejudice prong. Mr. Diaz now requests a certificate of appealability (COA) in

order to appeal the district court’s ruling.

      We may grant a COA only if Mr. Diaz makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do this, he 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, 483-84 (2000) (internal quotation marks

omitted). Because Mr. Diaz proceeds in this court pro se, we review his

pleadings with special solicitude.

      With these standards in mind, we conclude that Mr. Diaz is not eligible for

a COA. Mr. Diaz had to show that but for his lawyer’s advice it was at least

reasonably probable he would have rejected the government’s offer, taking the

risk that another (presumably better) offer would come his way or he would

proceed to trial. See Premo v. Moore, 131 S. Ct. 733, 745 (2011); Hill v.

                                         -2-
Lockhart, 474 U.S. 52, 59 (1985); see also Missouri v. Frye, 132 S. Ct. 1399,

1409 (2012). The difficulty is, there is no evidence in the record suggesting any

of this. To the contrary, there’s ample evidence the agreement he had in hand

was a very attractive one even without the prospect of a Rule 35 reduction. The

government agreed to dismiss three of the four counts of his indictment. It

promised to recommend a downward adjustment to the advisory guidelines range.

See Fed. R. Crim. P. 11(c)(1)(B). And it pledged not to inform the court at

sentencing of Mr. Diaz’s prior drug conviction. See 21 U.S.C. § 851(a)(1).

Turning down the deal, moreover, carried with it considerable risk given a strong

case the government could have presented at trial: the government had

intercepted a box of methamphetamine Mr. Diaz admitted to mailing from

California to Oklahoma. Even without the promise of a Rule 35 motion, then, the

deal Mr. Diaz received was a strong one and there is before us no credible

account in the record from Mr. Diaz to suggest anything hinged on a Rule 35

promise. Accordingly, we see no way to debate the district court’s conclusion

that there is no reasonable probability Mr. Diaz would have walked away from the

plea he had in hand and taken his chances at obtaining something better from the

prosecution or a jury.




                                        -3-
The application for a COA is denied and this appeal is dismissed.


                               ENTERED FOR THE COURT


                               Neil M. Gorsuch
                               Circuit Judge




                                 -4-
