                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            May 4, 2006
                                TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                           Clerk of Court


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                         No. 05-3416
                                                     (District of Kansas)
v.
                                              (D.C. Nos. 04-CV-3067-KHV and
                                                   01-CR-20147-01-KHV)
RALPH MERCADO,

       Defendant-Appellant.




                                      ORDER


Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.



      Petitioner, Ralph Mercado, seeks a certificate of appealability (“COA”) so

he can appeal the district court’s denial of the motion to vacate, set aside, or

correct his sentence brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. §

2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). Because Mercado has not made a

substantial showing of the denial of a constitutional right, we deny his request and

dismiss this appeal.
      Pursuant to the terms of a plea agreement, Mercado pleaded guilty to

assaulting a federal correctional officer in violation of 18 U.S.C. § 113(a)(4).

Mercado was sentenced to six months’ incarceration. Although Mercado waived

his right to appeal or collaterally challenge his conviction and sentence as part of

his plea agreement, he filed the instant § 2255 motion on February 25, 2004. In

the motion, Mercado raised one claim; that the ineffective assistance of his two

attorneys rendered his guilty plea unknowing and involuntary. Specifically,

Mercado asserted his first attorney retained a private investigator who obtained

the names of other inmates allegedly willing to testify on his behalf. According

to Mercado, the testimony of these witnesses would support his assertion that he

acted in self-defense. Mercado alleged his first attorney was ineffective for not

forwarding the information and his second attorney was ineffective for not

requesting it. He also alleged he would not have pleaded guilty if he had known

witnesses had been identified.

      The district court concluded the waiver in Mercado’s plea agreement was

not enforceable as to his ineffective assistance claim. See United States v.

Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (“[A] plea agreement waiver of

postconviction rights does not waive the right to bring a § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver.”). The court, however, also concluded Mercado had failed to provide a


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sufficient factual basis for his assertion counsels’ alleged deficient performance

affected the outcome of the plea process. See Miller v. Champion, 262 F.3d 1066,

1072 (10th Cir. 2001). The district court did not dismiss Mercado’s § 2255

motion, but provided Mercado with an opportunity to file affidavits of the alleged

witnesses establishing (1) whether the individuals witnessed the assault that

formed the basis for the charge against Mercado, (2) that they were willing to

testify, and (3) the nature of their proposed testimony. The court appointed

counsel to assist Mercado in obtaining the affidavits.

         On April 20, 2005, the court issued a show cause order requesting counsel

to advise the court regarding the status of the proposed affidavits. Counsel

responded on June 1, 2005 and June 13, 2005 informing the court he was unable

to contact one alleged witness and had received no response from the other four

witnesses. The district court then denied Mercado’s § 2255 motion, concluding

he had failed to provide sufficient evidence to support his ineffective assistance

claim.

         In his application for a COA and appellate brief, Mercado does not

challenge the district court’s conclusion his claim was not supported by any

evidence. Instead, he asserts his postconviction counsel was ineffective for

failing to obtain the affidavits. We must reject Mercado’s argument because a

petitioner has no constitutional right to counsel in postconviction proceedings.


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See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Thomas v. Gibson, 218

F.3d 1213, 1222 (10th Cir. 2000).




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      To be entitled to a COA, Mercado must make “a substantial showing of the

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

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

omitted). In evaluating whether Mercado has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Mercado need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Mercado’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes Mercado is not entitled to a COA. The district court’s resolution of

Mercado’s § 2255 motion is not reasonably subject to debate and the issues he




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seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court denies Mercado’s request for a COA and dismisses this

appeal.

                                      Entered for the Court
                                      ELISABETH A. SHUMAKER, Clerk


                                      By
                                              Deputy Clerk




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