                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 10, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 10-2001
       v.                                            (D. New Mexico)
                                            (D.C. No. 1:09-CV-00315-LH-LAM)
OSCAR PROVENCIO-SANDOVAL,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Petitioner, Oscar Provencio-Sandoval, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

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

motion unless he first obtains a COA). In 2007, Provencio-Sandoval was

convicted by a jury of illegally reentering the United States following conviction

for an aggravated felony. The aggravated felony was a 1995 Texas state

conviction for aggravated assault. Provencio-Sandoval pursued one issue on

direct appeal: that his constitutional right to confront the witnesses against him
was violated. United States v. Provencio-Sandoval, 272 F. App’x 683, 684 (10th

Cir. 2008). This court affirmed his conviction. Id. at 685.

      Provencio-Sandoval filed his § 2255 motion on March 30, 2009. He

asserted the following four claims for relief: (1) his attorney in the 1995 Texas

case was ineffective for advising him to plead guilty; (2) he was improperly

convicted of illegal reentry because he is a citizen of the United States and, thus,

he should not have been deported in 1999; and (3) his base offense level should

not have been increased by sixteen levels because his Texas conviction was not a

crime of violence; and (4) his attorney provided ineffective assistance for failing

to raise the foregoing three issues on direct appeal, failing to investigate those

three issues, failing to file a notice of appeal, and filing an appellate brief without

consulting him. The matter was referred to a magistrate judge who prepared a

comprehensive report and recommendation.

      The magistrate judge recommended denying Provencio-Sandoval’s first

claim because Provencio-Sandoval cannot use his § 2255 motion to collaterally

challenge his 1995 Texas conviction. See Lackawanna County Dist. Attorney v.

Coss, 532 U.S. 394, 403-04 (2001) (“[O]nce a state conviction is no longer open

to direct or collateral attack in its own right because the defendant failed to

pursue those remedies while they were available (or because the defendant did so

unsuccessfully), the conviction may be regarded as conclusively valid.”). The

second and third claims were procedurally barred because they were not raised on

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direct appeal and Provencio-Sandoval failed to show cause and prejudice for the

default or demonstrate that a fundamental miscarriage of justice would result if

the claims were not considered. See Coleman v. Thompson, 501 U.S. 722, 750

(1991). Finally, the magistrate judge recommended denying the fourth claim on

the merits because Provencio-Sandoval failed to satisfy the two-part test set out in

Strickland v. Washington, 466 U.S. 668, 688-89 (1984). After considering

Provencio-Sandoval’s timely objections to the magistrate’s report, the district

court adopted the magistrate judge’s Proposed Findings and Recommended

Disposition and dismissed the § 2255 motion with prejudice.

      This court cannot grant Provencio-Sandoval a COA unless he is able to

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, 484 (2000) (quotations omitted); see also id. at

484-85 (holding that when a district court dismisses a habeas petition on

procedural grounds, a petitioner is entitled to a COA only if he shows both that

reasonable jurists would find it debatable whether he had stated a valid

constitutional claim and debatable whether the district court’s procedural ruling

was correct). This court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. Miller-

El v. Cockrell, 537 U.S. 322, 338 (2003). Provencio-Sandoval is not required to

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demonstrate his appeal will succeed to be entitled to a COA. He must, however,

“prove something more than the absence of frivolity or the existence of mere

good faith.” Id. (quotations omitted).

      This court has reviewed Provencio-Sandoval’s appellate brief and

application for COA, the Proposed Findings and Recommended Disposition, the

district court’s order, and the entire record on appeal pursuant to the framework

set out by the Supreme Court and concludes Provencio-Sandoval is not entitled to

a COA. The district court’s resolution of Provencio-Sandoval’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Accordingly, Provencio-Sandoval has not “made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

court denies his request for a COA, grants the motion to proceed in forma

pauperis, and dismisses this appeal. 1

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




      1
       Because Provencio-Sandoval is scheduled to be released shortly, his
Motion for Stay of Proceedings is denied. The Clerk is directed to forward one
copy of this Order to Provencio-Sandoval at the address provided to the Clerk by
Provencio-Sandoval, and a second copy to Provencio-Sandoval at the CI NE Ohio
Correctional Center in Youngstown, Ohio.

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