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

                                     TENTH CIRCUIT                         February 29, 2012

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff – Appellee,
                                                                No. 12-3031
v.                                                     (D.C. No. 2:11-CV-02071-KHV)
                                                                  (D. Kan.)
PABLO RENE BUCIO,

             Defendant - Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges


      Pablo Bucio, a federal prisoner, seeks to appeal from the district court=s denial of

his 28 U.S.C. ' 2255 Motion to Vacate, Set Aside or Correct Sentence. The motion

claimed ineffective assistance of counsel with respect to both of his trial attorneys. We

deny his request for a Certificate of Appealability (COA).

      Bucio was charged with numerous drug-related offenses. He pled guilty to some

without a plea agreement and pled guilty to others pursuant to a plea agreement. He

was sentenced to a total of 327 months of incarceration. On direct appeal, the claims

pertaining to the counts covered by the plea agreement were dismissed because of an

appeal waiver in the agreement.      See United States v. Bucio, 358 F.App’x 13 (10th Cir.

2009). The remaining claims were dismissed as dictated by Anders v. California, 386
U.S. 738 (1967). See United States v. Bucio, 377 F.App’x 782 (10th Cir. 2010).

       Bucio wants to appeal because, in considering his § 2255 motion, the district court

did not hold a hearing. That was error, according to him, because his sworn declaration,

submitted to the district court and attached to his opening brief, states that he would not

have pled guilty but for false representations by his first attorney.

       Bucio claims, because his declaration must be taken as true, the matter could not

be resolved without a hearing. Indeed, section 2255(b) provides: “Unless the motion

and the files and records of the case conclusively show that the prisoner is entitled to no

relief, the court shall . . . grant a prompt hearing thereon . . . .” But whether a defendant

would have gone to trial is not a subjective inquiry. The court must determine whether

the decision to reject the plea bargain would have been “rational under the

circumstances.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).

       Review of a § 2255 habeas action involves two steps: (1) “whether the defendant

is entitled to relief if his allegations are proved; and (2) whether the district court abused

its discretion.” United States v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992). Bucio

has never made a principled argument that his decision to reject a plea would be rational

under the circumstances of this case. And, in a detailed order the district court

explained its decision to deny his motion. It accepted as true his factual assertions not

clearly refuted by the record, but concluded (in spite of his conclusory statements) no

rational person would have refused the plea bargain given the overwhelming evidence of

guilt. Moreover, it explained precisely how the record refuted his claims of prejudice

resulting from attorney errors.   Strickland v. Washington, 466 U.S. 668, 691 (2000)


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(“An error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.”)

       A COA may issue only if “the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is whether a

reasonable jurist could “debate whether (or, for that matter, agree that) the petition should

have been resolved in different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotations omitted); see also, Miller El v. Cockrell, 537 U.S. 322, 326

(2003). Neither standard was met here. Reasonable jurists would agree; the district

court did not abuse its discretion.

       We DENY the request for a COA and DISMISS this matter.

                                                  Entered for the Court:

                                                  Terrence L. O=Brien
                                                  Circuit Judge




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