                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 26, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                       No. 09-6292
 v.                                           (D.C. Nos. 09-CV-00473-R and
                                                    06-CR-00115-R-1)
 JESUS ADOLFO                                          (W.D. Okla.)
 TINAJERO-PORRAS,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Defendant-Appellant Jesus Tinajero-Porras, a federal inmate appearing pro

se, seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence. Because Mr. Tinajero-Porras has not

made “a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a certificate of appealability (“COA”) and

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

      A jury convicted Mr. Tinajero-Porras on drug charges arising out of a

conspiracy to possess with intent to distribute five kilograms or more of cocaine

and 1,000 kilograms or more of marijuana and he was sentenced to 30 years’
imprisonment. United States v. Tinajero-Porras, 275 F. App’x. 794, 795 (10th

Cir. 2008). In his § 2255 motion, he primarily argued that he received ineffective

assistance of counsel. On appeal, he argues that counsel was ineffective based on

failing to object, argue, and preserve the following points: (1) the four-point

enhancement for being a leader/organizer lacks a factual basis, (2) the drug

quantities used were in error, (3) there was no evidence he laundered money, (4)

the two-point enhancement for a firearm was not supported by the evidence, and

(5) cumulative error. He also objects to the district court’s practice of striking his

reply brief because it was not timely filed within 11 days. 1 R. 230.

      To obtain a COA, Mr. Tinajero-Porrras must show “that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). To establish ineffective assistance of counsel, Mr. Tinajero-Porras was

required to prove deficient performance and prejudice. Strickland v. Washington,

466 U.S. 668, 687 (1984). Having reviewed the pleadings including the

government’s responses and the Pre-Sentence Report, 1 R. 94-156, 181-204, and

the district court’s resolution of Mr. Tinajero-Porras’ claims, we are satisfied that

he cannot meet this standard. 1 R. 165-71, 207-09, 230 (noting that the result

would not be altered even had the court considered the reply brief).




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We deny a COA and DISMISS the appeal.


                            Entered for the Court


                            Paul J. Kelly, Jr.
                            Circuit Judge




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