                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               February 20, 2013
                                TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 12-5158
                                            (D.C. Nos. 4:09-CV-00077-JHP-PJC
 v.                                             and 4:06-CR-00077-JHP-1)
                                                      N.D. Oklahoma
 RENATO VALDOVINOS,

              Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before HARTZ, EBEL, and MURPHY, Circuit Judges.




      Proceeding pro se, Renato Valdovinos seeks to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

The matter is before this court on Valdovinos’s request for a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). Because Valdovinos has not “made a substantial showing

of the denial of a constitutional right,” this court denies his request for a COA

and dismisses this appeal. Id. § 2253(c)(2).
      Valdovinos was charged in a two-count indictment with possession with

intent to distribute methamphetamine, and conspiracy to possess with intent to

distribute methamphetamine. He pleaded guilty to both counts and was sentenced

to a term of 210 months’ imprisonment. He did not file a direct appeal.

      Valdovinos raised just one claim in the § 2255 motion he filed in the

United States District Court for the Northern District of Oklahoma: that his trial

counsel “was ineffective for failing to file a notice of appeal and consult about an

appeal.” The district court held an evidentiary hearing on December 21, 2011, at

which Valdovinos’s trial counsel testified. After considering counsel’s testimony

and her sworn affidavit, the district court found counsel “correctly advised

[Valdovinos] of the potential consequences of an appeal, and he subsequently

informed her that he did not wish to appeal.” Based on this finding, the court

concluded Valdovinos was not entitled to habeas relief because he failed to show

counsel’s performance fell below an objective standard of reasonableness. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also United States v.

Orange, 447 F.3d 792, 796-97 (10th Cir. 2006) (“Because [a defendant] must

demonstrate both Strickland prongs to establish his claim, a failure to prove

either one is dispositive.” (citation omitted)).

      To be entitled to a COA, Valdovinos must make “a substantial showing of

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

requisite showing, he must demonstrate “that reasonable jurists could debate

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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.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (quotations omitted). In evaluating whether Valdovinos has satisfied his

burden, this court undertakes “a preliminary, though not definitive, consideration

of the [legal] framework” applicable to each of his claims. Id. at 338. Although

Valdovinos need not demonstrate his appeal will succeed to be entitled to a COA,

he must “prove something more than the absence of frivolity or the existence of

mere good faith.” Id.

      Having undertaken a review of Valdovinos’s application for a COA and

appellate brief, the district court’s order, and the entire record on appeal pursuant

to the framework set out by the Supreme Court in Miller-El, this court concludes

Valdovinos is not entitled to a COA. 1 The district court’s resolution of his

§ 2255 motion is not reasonably subject to debate and the issues he seeks to raise




      1
        In his appellate brief, Valdovinos attempts to raise additional claims that
were not included in his § 2255 motion. We will not address any of these issues.
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent
extraordinary circumstances, [this court] will not consider arguments raised for
the first time on appeal. This is true whether an appellant is attempting to raise a
bald-faced new issue or a new theory that falls under the same general category
as a previous argument.” (quotations and citation omitted)).

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on appeal are not adequate to deserve further proceedings. Accordingly, this

court denies Valdovinos’s request for a COA and dismisses this appeal. His

request to proceed in forma pauperis on appeal is granted.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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