                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 4 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-4219
v.                                                   (District of Utah)
                                                  (D.C. No. 97-CV-917-B)
JOSE LEON-MUNOZ,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This case is before the court on Jose Leon-Munoz’s pro se request for a

certificate of appealability (“COA”). 1 Leon-Munoz seeks a COA so that he can

appeal the district court’s denial of his 28 U.S.C. § 2255 petition. See 28 U.S.C.

§ 2253(c)(1)(B) (providing that a petitioner cannot appeal the denial of a § 2255

petition unless he first obtains a COA). Because Leon-Munoz has not “made a

substantial showing of the denial of a constitutional right,” as required by

28 U.S.C. § 2253(c)(2), this court denies his request for a COA and dismisses

this appeal.

      Leon-Munoz pleaded guilty to illegal reentry in violation of 8 U.S.C. §

1326(a) and was sentenced to a term of seventy-seven months in a federal

correctional facility. Rather than filing a direct appeal, Leon-Munoz filed the

instant § 2255 petition. In his petition, Leon-Munoz asserted that his attorney had

been ineffective in the following two respects: (1) failing to request a downward

departure on the basis of a stipulated voluntary deportation and waiver of any

right to a hearing in connection with the deportation process; and (2) failing to



      1
       The district court did not rule on Leon-Munoz’s request for a COA. Under
this court’s Emergency General Order of October 1, 1996, we deem the district
court’s failure to issue a COA within thirty days after filing of the notice of
appeal as a denial of the certificate. See United States v. Riddick, 104 F.3d 1239,
1241 n.2 (10th Cir.), overruled on other grounds by United States v. Kunzman,
125 F.3d 1363, 1364 n.2 (10th Cir.1997), cert. denied, 523 U.S. 1053 (1998).



                                         -2-
request an additional one-point downward adjustment in the base offense level for

acceptance of responsibility under U.S.S.G. § 3E1.1(b). In addition to his two

ineffective assistance of counsel claims, Leon-Munoz also asserted that he was

improperly sentenced pursuant to 8 U.S.C. § 1326(b)(2) because the government

had failed to allege § 1326(b)’s prior felony element in the indictment.

      Leon-Munoz’s § 2255 petition was referred to a magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In a thorough report and

recommendation (“R & R”), the magistrate judge recommended that Leon-

Munoz’s petition be denied. The magistrate judge began his analysis by noting

that to prevail on his ineffective assistance claim, Leon-Munoz must satisfy the

two-part test set forth by the Supreme Court in Strickland v. Washington, 466

U.S. 668, 686 (1984) (holding that in order to prevail on an ineffective assistance

claim, a petitioner must show: (1) that counsel’s performance was deficient; and

(2) that the deficient performance prejudiced the defense to the extent of altering

the outcome). As to Leon-Munoz’s claim relating to the downward adjustment

for acceptance of responsibility, the district court noted that despite his assertions

to the contrary, Leon-Munoz had actually received the full three-point adjustment.

Accordingly, he failed to meet either prong of Strickland. As to the claim that

counsel was ineffective for failing to request a downward departure based on a

stipulation for voluntary deportation, the district court noted as follows: (1) there


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was no showing in the record that Leon-Munoz had ever entered into such a

stipulation or expressed a desire to do so; (2) the United States Attorney’s office

in Utah did not have a practice of entering into such stipulations and there was

nothing in the record to indicate the district court would have granted a departure

absent such an stipulation; and (3) case law and revisions in the practices of the

Attorney General seriously called into question the propriety of a downward

departure on these grounds. Having resolved the ineffective assistance claims,

the magistrate judge went on to note that Leon-Munoz’s claim that he was

improperly sentenced under § 1326(b) because his prior felony was not set out in

the indictment was precluded by the Supreme Court’s decision in Almendarez-

Torres v. United States, 118 S. Ct. 1219, 1223-33 (1998) (holding that §

1326(b)(2) is a penalty provision, rather than a separate substantive crime, and

that the government does not, therefore, have to charge the fact of an earlier

conviction in the indictment). Over Leon-Munoz’s objections, the district court

adopted the R & R after conducting a de novo review.

      Leon-Munoz is entitled to a COA only upon making a substantial showing

of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(1)(B). He can

make such a showing by demonstrating that the issues he seeks to raise are

deserving of further proceedings, debatable among jurists of reason, or subject to

different resolution on appeal. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983);


                                         -4-
see also Slack v. McDanial, No. 98-6322, 2000 WL 478879, at *7 (U.S. Apr. 26,

2000) (“[W]e give the language found in § 2253(c) the meaning ascribed it in

Barefoot, with due note for the substitution of the word “constitutional.”); id.

(“Where a district court has rejected the constitutional claims on the merits, the

showing required to satisfy § 2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”). A close review of Leon-Munoz’s

request for a COA and appellate brief, the R & R, and the entire record on appeal

demonstrates that Leon-Munoz cannot make any of the necessary showings.

Accordingly, this court DENIES Leon-Munoz’s request for a COA for

substantially those reasons set out in the R & R dated August 18, 1999. This

appeal is therefore DISMISSED.

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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