                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSFebruary 4, 2015
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 14-2121
 v.                                         (D.C. Nos. 1:12-CV-00482-LH-KBM
                                              and 1:07-CR-00701-LH-KBM-1)
 JESUS MANUEL DIAZ,                                       (D.N.M.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


      Defendant-Appellant Jesus Manuel Diaz 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. Diaz 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. See Slack v.

McDaniel, 529 U.S. 473, 483–84 (2000).

                                    Background

      On March 19, 2007, Mr. Diaz, the owner-operator of a one-rig trucking

company, arrived at the Gallup, New Mexico, Point of Entry (“POE”), near the

Arizona border. Mr. Diaz had arranged to haul goods in his tractor-trailer from
California to Georgia. Mr. Diaz claims that, in accordance with common practice,

he had not loaded the trailer himself; his role was merely to hook up the load,

carry it to another location, and drop it off. During the ensuing safety inspection

at the Gallup POE, a Motor Transportation Division officer, Officer Smid, made

several observations that led him to believe Mr. Diaz might be involved in

criminal activity. Officer Smid asked Mr. Diaz if he could perform a more

thorough search of the tractor-trailer, and Mr. Diaz provided both verbal consent

and a signed and dated “Consent to Search” form. A search revealed over 3000

pounds of marijuana.

      Following a trial, Mr. Diaz was convicted of possession with intent to

distribute 1000 kilograms or more of marijuana, 21 U.S.C. § 841(b)(1)(A), and

sentenced to 121 months’ imprisonment. His conviction was affirmed on direct

appeal. United States v. Diaz, 356 F. App’x 117 (10th Cir. 2009). Mr. Diaz

subsequently filed a § 2255 motion. The case was referred to a magistrate judge,

who recommended denial. The district court adopted the magistrate judge’s

report and recommendation. On appeal, Mr. Diaz argues: (1) he was denied

effective assistance of trial counsel; (2) his conviction violates the Fourth

Amendment; and (3) the district court erred in denying his § 2255 motion without

an evidentiary hearing.



                                     Discussion

                                         -2-
      To obtain a COA, Mr. Diaz must demonstrate that “reasonable jurists would

find the district court’s assessment of [his] constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. Where the district court denied a claim on

procedural grounds, he must show that both the underlying constitutional claim

and the district court’s procedural ruling were reasonably debatable. Id.

A.    Ineffective Assistance of Counsel

      To prevail on a claim of ineffective assistance of counsel, Mr. Diaz must

demonstrate that counsel’s performance fell below an objective standard of

reasonableness and that Mr. Diaz was therefore prejudiced. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Bullock v. Carver, 297 F.3d 1036, 1044

(10th Cir. 2002). Prejudice occurs when, but for the deficient performance, there

is a reasonable probability that the result of the trial or sentencing would have

been different. Strickland, 466 U.S. at 694. In analyzing ineffective assistance

claims, we give considerable deference to counsel’s strategic choices and

“recognize that counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 690.

      Mr. Diaz argues that his trial counsel provided constitutionally ineffective

assistance in five principal ways. He argues that counsel failed to show that the

POE officers (1) never fully performed a Level II safety inspection, (2) had a

subjective intent to conduct a criminal investigation in the guise of a routine

                                         -3-
administrative inspection, and (3) conducted a pretextual search in violation of his

rights under the Fifth Amendment’s “due process” clause and the Ninth

Amendment’s “retained rights” clause. He further faults counsel for (4) not

sufficiently attacking Officer Smid’s assertion that Mr. Diaz loaded the trailer

himself and (5) not enlisting a trucking expert at trial who could attack Officer

Smid’s “pronouncements” about trucking industry standards.

      The magistrate judge and district court fully addressed Mr. Diaz’s

ineffective assistance claims, and their assessment is not reasonably debatable. In

particular, Mr. Diaz’s claims—which essentially contend that counsel failed to

adequately argue that the officers’ administrative safety inspection was a mere

pretext for a criminal investigation—do not account for Mr. Diaz’s knowing and

voluntary consent to the search which uncovered the marijuana. Additionally,

Mr. Diaz’s argument in favor of applying provisions of the New Mexico

Constitution to a federal prosecution through the Fifth and Ninth Amendments

wholly lacks merit. See United States v. Dickerson, 195 F.3d 1183, 1187 (10th

Cir. 1999) (holding that, in a federal prosecution, only federal law governs a

court’s inquiry into the reasonableness of a search); United States v. Hernandez-

Rodriguez, 352 F.3d 1325, n.1 (10th Cir. 2003) (holding that a potential violation

of state law is irrelevant if a search did not violate federal constitutional

standards). Thus, Mr. Diaz has not shown actual prejudice in counsel’s alleged

failure to argue these claims.

                                          -4-
B.    Fourth Amendment Violations

      Mr. Diaz next argues that his conviction violates the Fourth Amendment

because the court admitted evidence derived from an unreasonable warrantless

search. As Mr. Diaz concedes, clear precedent establishes that we may not

review alleged Fourth Amendment violations in a § 2255 motion when a

defendant has had a full and fair opportunity to litigate his Fourth Amendment

claims at trial and on direct appeal. United States v. Lee Vang Lor, 706 F.3d

1252, 1257 (10th Cir.), cert. denied 134 S. Ct. 679 (2013); see also Stone v.

Powell, 428 U.S. 465, 494–95 (1976). We are bound by this precedent, and Mr.

Diaz has not shown he lacked a full and fair opportunity to litigate his claims.

C.    Evidentiary Hearing

      Finally, Mr. Diaz argues that the district court erred in not conducting an

evidentiary hearing despite his presentation of substantial evidence to support his

claim of factual innocence. Because the motion, files, and records in this case

conclusively show that Mr. Diaz is entitled to no relief under § 2255, an

evidentiary hearing is not required. 28 U.S.C. 2255(b); United States v. Flood,

713 F.3d 1281, 1291 (10th Cir. 2013).

      Accordingly, we DENY a COA and DISMISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge

                                         -5-
