                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                     February 18, 2010
                                 TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                          No. 09-6151
 v.                                                (D.C. No. 08-CV-00921-R)
                                                          (W.D. Okla.)
 ADRIAN MACIAS CASTRO,

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Defendant-Appellant Adrian Macias Castro, a federal inmate represented by

appointed counsel, seeks a certificate of appealability (COA) to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. Because Mr. Castro has not made “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), in light of the district court’s

factual findings, we deny his request for a certificate of appealability (COA) and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).



                                     Background

      Following a jury trial, Mr. Castro was convicted of, inter alia, conspiracy to
possess controlled substances with intent to distribute; possession of controlled

substances with intent to distribute; possession of a firearm by a convicted felon;

interstate travel in aid of racketeering; and money laundering conspiracy. 1 R.

86-87. He was sentenced to concurrent sentences for a total term of 360 months’

imprisonment and five years of supervised release. 1 R. 88-89. We affirmed on

direct appeal. See United States v. Castro, 225 F. App’x 755 (10th Cir. 2007).

Mr. Castro then filed a § 2255 motion alleging ineffective assistance of counsel

based on trial counsel’s alleged failure to convey a plea offer made by the

government. 1 R. 94-107, 118-23, 126-30. After appointing counsel to represent

Mr. Castro, the district court held an evidentiary hearing at which trial counsel

and Mr. Castro testified. 3 R. 1-66. Following this hearing, the court issued its

written order denying relief on the grounds that Mr. Castro could not establish

deficient performance and prejudice given the district court’s factual finding that

counsel had indeed conveyed the plea offer. 1 R. 172-76.



                                     Discussion

      The failure to inform a defendant of a favorable plea agreement (deficient

performance) is a viable ineffective assistance of counsel claim when a defendant

can prove that but for counsel’s deficient performance, he would have accepted

the plea (prejudice). See Williams v. Jones, 571 F.3d 1086, 1090 n.3 & 4 (10th

Cir. 2009). At the evidentiary hearing, Mr. Castro testified that he never received

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any information from counsel concerning the plea offer, 3 R. 42-48, while trial

counsel testified that he discussed the government’s plea offer and the benefits of

entering a plea of guilty with Defendant on numerous occasions, 3 R. 5-6, 15-18,

25-26. The district court viewed trial counsel’s testimony as more credible;

therefore, Mr. Castro cannot establish the factual predicate for his ineffective

assistance claim. What is more, the district court’s resolution of this matter is not

reasonably debatable given the standard of review we would be required to

employ in evaluating its factual finding: clear error. See United States v.

Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008). After thoroughly

reviewing the record, we would have to conclude that the district court’s factual

finding is not clearly erroneous given two permissible views of the evidence.

      Accordingly, we DENY a COA and DISMISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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