                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 27, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                   Nos. 12-2162, 13-2036
 v.
                                            (D.C. Nos. 1:08-CV-00479-RB-WDS;
                                                   2:04-CR-00852-RB-1)
 ALEJANDRO ESPINOZA, a/k/a
                                                          (D.N.M.)
 Miguel Angel Manzo,

              Defendant-Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Proceeding pro se 1 and in forma pauperis, federal inmate Alejandro

Espinoza requests a certificate of appealability (“COA”) to challenge the district

court’s denial of his motion to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255. We deny Mr. Espinoza’s request for a COA and dismiss this

matter.

      *
              This order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             In light of Mr. Espinoza’s pro se status, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
                                          I

      In 2004, Mr. Espinoza was indicted for conspiracy to possess with intent to

distribute methamphetamine. The government’s chief witness at his 2005 trial

was Debra James, an admitted methamphetamine user, who identified Mr.

Espinoza as her supplier. Ms. James stated more than once during her testimony

that she had not used methamphetamine since January 2004. In fact, Ms. James

had taken a drug test in August 2004 and tested positive for methamphetamine.

The government did not disclose this information to defense counsel before Mr.

Espinoza’s trial.

      After his conviction was affirmed on direct appeal, Mr. Espinoza filed a

§ 2255 motion to challenge his sentence of 240 months’ imprisonment. The

government’s failure to disclose Ms. James’s positive drug-test results came to

light in its response brief, but was not discussed in the magistrate judge’s report

and recommendation. Over Mr. Espinoza’s objection, the district court denied his

§ 2255 motion without holding an evidentiary hearing, dismissed the matter, and

denied a COA. Mr. Espinoza then moved to alter or amend the judgment pursuant

to Federal Rule of Civil Procedure 59(e), and concurrently filed his notice of

appeal. A panel of our court abated the case until the district court ruled on (that

is, denied) the Rule 59(e) motion, at which point the panel denied a COA and

dismissed Mr. Espinoza’s appeal.

      In his ensuing petition for panel rehearing, Mr. Espinoza complained that

                                         -2-
the district court had denied his § 2255 motion without addressing his claim that

the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to

disclose Ms. James’s drug-test results. The panel agreed: it granted a COA on the

Brady claim and remanded the matter to the district court with instructions to rule

on that claim in the first instance.

      Mr. Espinoza subsequently filed a slew of motions, all of which the district

court denied as outside the scope of its limited jurisdiction on remand. Mr.

Espinoza sought to appeal from the court’s rulings on his motions (No. 12-2162).

We abated this purported (i.e., seemingly interlocutory) appeal pending the

district court’s resolution of Mr. Espinoza’s Brady claim. The district court

ultimately adopted a magistrate judge’s report and recommendation regarding Mr.

Espinoza’s Brady claim, denied the § 2255 motion, and dismissed the case. Mr.

Espinoza filed a timely notice of appeal (No. 13-2036). The district court sua

sponte declined to issue a COA.

      Mr. Espinoza now seeks a COA to challenge the district court’s denial of

his sundry post-remand motions and his § 2255 motion. We have consolidated his

two appeals for our review.

                                         II

      Unless a petitioner first obtains a COA, this court is not authorized to

adjudicate the merits of an appeal from a district court’s denial of a § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B); see also United States v. Moya, 676 F.3d

                                        -3-
1211, 1213 (10th Cir. 2012). And a COA may issue “only if the applicant has

made a substantial showing of the denial of a constitutional right.” Coppage v.

McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting 28 U.S.C. § 2253(c)(2))

(internal quotation marks omitted); accord Harris v. Dinwiddie, 642 F.3d 902,

906 (10th Cir. 2011). “To make such a showing, an applicant must demonstrate

‘that reasonable jurists could debate whether (or, for that matter, agree that) the

[motion] should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.’” Harris,

642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      An applicant faces a “double hurdle” when habeas relief has been denied on

procedural grounds. See Coppage, 534 F.3d at 1281. “Not only must the

applicant make a substantial showing of the denial of a constitutional right, but he

must also show ‘that jurists of reason would find it debatable . . . whether the

district court was correct in its procedural ruling.’” Id. (omission in original)

(quoting Slack, 529 U.S. at 484). If the district court correctly invoked a

procedural bar in denying relief, “a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further.” Slack, 529 U.S. at 484.

      We review the district court’s factual findings for clear error and its legal

conclusions de novo. See United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir.

2011), cert. denied, --- U.S. ----, 132 S. Ct. 1818 (2012); United States v. Garrett,

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402 F.3d 1262, 1264 (10th Cir. 2005).

                                         III

      Mr. Espinoza raises several issues in his application for a COA, which are

reducible to three arguments: (1) the district court erred in denying relief on his

Brady claim; (2) the district court abused its discretion by denying the motions

filed while his case was on remand from our court; and (3) his trial attorney

provided ineffective assistance of counsel.

                                          A

      A Brady violation 2 occurs when the government suppresses evidence which

is both favorable and material to the defense. See Brady, 373 U.S. at 87; United

States v. Combs, 267 F.3d 1167, 1172 (10th Cir. 2001). Evidence is “favorable”

if it is exculpatory or impeaching, see Douglas v. Workman, 560 F.3d 1156, 1173

(10th Cir. 2009) (per curiam), and is “material” if “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different,” United States v. Cooper, 654 F.3d 1104,

1119 (10th Cir. 2011) (quoting United States v. Torres, 569 F.3d 1277, 1282

(10th Cir. 2009)) (internal quotation marks omitted). “A ‘reasonable probability’

is a ‘probability sufficient to undermine confidence in the outcome.’” United



      2
            As the panel observed on rehearing, Mr. Espinoza’s challenge to the
government’s conduct is more precisely styled as an alleged violation of Giglio v.
United States, 405 U.S. 150 (1972).

                                         -5-
States v. Smith, 534 F.3d 1211, 1222 (10th Cir. 2008) (quoting Scott v. Mullin,

303 F.3d 1222, 1230 (10th Cir. 2002)).

      Given the government’s concession that it suppressed evidence which

might have impeached the credibility of its primary witness, we need not address

the first two prongs of the Brady test. The only remaining issue, therefore, is

whether the suppressed evidence was material (and thus prejudicial) to the

defense. After a thorough review of the record, we conclude that it was not.

      We are satisfied that the government’s case against Mr. Espinoza would

have been compelling even if the suppressed impeachment evidence had been

available to the defense. At trial, the government adduced copious evidence of

Mr. Espinoza’s guilt beyond Ms. James’s attestations, viz., undercover-agent

testimony, methamphetamine samples, bank statements, and phone call excerpts

containing Mr. Espinoza’s inculpatory remarks. Indeed, the very circumstances

of Mr. Espinoza’s arrest—involving a prearranged drug-related

rendezvous—seem especially damning to his case. We cannot say, in light of the

foregoing, that there is a reasonable probability that the result of his trial would

have been different if Mr. Espinoza had been able to reveal Ms. James’s

dishonesty to the jury.

      Moreover, while evidence of perjurious testimony often tarnishes a

witness’s credibility, we have suggested that “an incremental amount of

impeachment evidence” does not satisfy the materiality standard. United States v.

                                         -6-
Trujillo, 136 F.3d 1388, 1394 (10th Cir. 1998). We have likewise “discarded as

immaterial . . . undisclosed impeachment evidence where it was cumulative of

evidence of bias 3 or partiality already presented and thus would have provided

only marginal additional support for [the] defense.” Cooper, 654 F.3d at 1120

(alteration in original) (omission in original) (quoting Douglas, 560 F.3d at 1174)

(internal quotation marks omitted).

      To the extent the suppressed evidence would have bolstered Mr. Espinoza’s

case, it would not have done so by negating an element of the charged offense.

Nor would it have augmented his theory of defense—i.e., “that [Ms.] James was

protecting her true supplier and blaming [Mr. Espinoza] instead.” R., Vol. II, at

283 (Magistrate Judge’s Supplemental Report & Recommendation, filed Aug. 29,

2012). In sum, we think that there is not a reasonable possibility that a jury

would have returned a different verdict (favorable to Mr. Espinoza), even if it had

heard that Ms. James lied about having used drugs in August 2004.

      Put another way, because the impeachment evidence could not have

nullified the additional, substantial evidence of Mr. Espinoza’s guilt, we are not

convinced that the government’s suppression undermines confidence in the

outcome of his trial. See Browning v. Trammell, 717 F.3d 1092, 1094–95 (10th


      3
            The jury was duly instructed that Ms. James had testified pursuant to
a plea agreement and that her testimony should consequently be “received with
caution and weighed with great care.” United States v. Espinoza, Dist. Ct. No.
2:04-cr-00852-RB-1, Doc. 67, at 16 (Jury Instrs., filed Jan. 21, 2005).

                                        -7-
Cir. 2013) (“[T]he defendant must show the ‘favorable evidence could reasonably

be taken to put the whole case in such a different light as to undermine

confidence in the verdict.’” (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995))).

Accordingly, we conclude that the impeachment evidence suppressed here was

not material. The district court’s conclusion as to Mr. Espinoza’s Brady claim

was neither debatable nor wrong, and we decline to issue a COA on this basis.

                                          B

      Mr. Espinoza also challenges the district court’s denial of his motion to

amend and supplement his § 2255 motion (specifically, to request an evidentiary

hearing), his motion to conduct discovery, and his Rule 60(b) motion. He filed

all of the foregoing motions while his case was on remand for resolution of his

Brady claim. In denying each motion, the district court noted that the matter was

on remand for the sole purpose of resolving the Brady claim. Observing that Mr.

Espinoza’s filings only addressed unrelated issues, the district court concluded

that it had no authority to consider them. Further, the court stated, even assuming

that the motions pertained to the Brady claim, Mr. Espinoza should have set forth

the evidence he believed should have been presented, and explained how it would

have impacted the determination of his Brady claim.

      In our view, the district court’s rulings are ones that reasonable jurists

could not debate. The district court was correct to heed the panel’s articulated

reason for the remand, i.e., for the district court “to rule on the Brady claim in the

                                         -8-
first instance,” United States v. Espinoza, 421 F. App’x 817, 819 (10th Cir. 2010),

and address no other matters. We thus decline to issue a COA on this basis.

                                          C

        Finally, because the district court has already heard and disposed of Mr.

Espinoza’s ineffective-assistance claim, we reject his attempt to re-assert this

argument in his present request for a COA. In any event, his contentions in this

regard were not properly within the scope of the district court’s charge on

remand.

                                          IV

        Because reasonable jurists could not debate the correctness of the district

court’s decision to deny Mr. Espinoza’s § 2255 motion, and associated post-

remand motions, we deny Mr. Espinoza’s request for a COA and dismiss this

matter. 4



                                                Entered for the Court



                                                JEROME A. HOLMES
                                                Circuit Judge




        4
              We deny Mr. Espinoza’s pending motion to expedite the case as
moot.

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