                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            December 3, 2010

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,

 v.                                                            No. 09-2206
                                                   (D.C. No. 1:08-CV-00479-RB-WDS)
 ALEJANDRO ESPINOZA, a/k/a Miguel                               (D. N.M.)
 Angel Manzo,

        Defendant–Appellant.



                     ORDER GRANTING PANEL REHEARING


Before KELLY, EBEL, and LUCERO, Circuit Judges.



       Petitioner Alejandro Espinoza a/k/a Miguel Angel Manzo, a federal prisoner

proceeding pro se, seeks rehearing by the panel of its order dated August 20, 2010,

denying a certificate of appealability to appeal the district court’s dismissal of his 28

U.S.C. § 2255 petition. With respect to Espinoza’s claim under Brady v. Maryland, 373

U.S. 83 (1963), advanced in his amended petition for rehearing (“PFR”), we GRANT

rehearing by the panel. Section II.B of the panel’s August 20, 2010, order is VACATED

and replaced with the order issued herewith. We DENY panel rehearing on all other

issues raised in petitioner’s original and amended PFRs.

       Espinoza’s PFR has been circulated to the full court and no active judge has called
for a poll or voted for rehearing en banc. Consequently, his suggestion for rehearing en

banc is DENIED.

                                         Entered for the Court



                                         Carlos F. Lucero
                                         Circuit Judge




                                           -2-
                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                           December 3, 2010

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,

 v.                                                           No. 09-2206
                                                  (D.C. No. 1:08-CV-00479-RB-WDS)
 ALEJANDRO ESPINOZA, a/k/a Miguel                              (D. N.M.)
 Angel Manzo,

           Defendant–Appellant.



                                 ORDER AND JUDGEMENT*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


       Alejandro Espinoza a/k/a Miguel Angel Manzo, a federal prisoner proceeding pro

se, sought a certificate of appealability (“COA”) to appeal the district court’s dismissal of

his 28 U.S.C. § 2255 petition. In an August 20, 2010, order, we denied his application

for COA. Espinoza subsequently petitioned for panel rehearing with suggestion for

rehearing en banc on a number of grounds. We granted panel rehearing as to his claim

under Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Torres, 569 F.3d 1277

(10th Cir. 2009) (holding under similar facts that “merely because other impeachment

       *
         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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
evidence was presented does not mean that additional impeachment evidence is

cumulative”). In his amended petition for rehearing, Espinoza complains that neither the

magistrate judge, nor the district court ever ruled on his Brady claim. We agree and

accordingly remand this matter to the district court so that it may rule on the Brady claim

in the first instance.

                                             I

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

methamphetamine. The government’s primary witness against Espinoza was Deborah

James who testified that she bought methamphetamine from Espinoza. James also

interpreted for the jury a coded conversation between herself and Espinoza putatively

detailing the distribution of methamphetamine. James, an admitted methamphetamine

user, stated during both direct and cross-examination that she had not used

methamphetamine since January 2004.

       The Brady violation, or more accurately, the violation of Giglio v. United States,

405 U.S. 150 (1972), at issue is the government’s admitted suppression of evidence that

James repeatedly perjured herself. Despite testifying that she had not used drugs since

January 2004, the government held back the fact that James tested positive for

methamphetamine on August 25, 2004. The government disclosed this Brady violation

in its response to Espinoza’s 28 U.S.C. § 2255 motion on August 20, 2008, three years

after Espinoza’s trial. Following the government’s disclosure, Espinoza sought to raise

the Brady issue in his pro se motion to file a reply brief to the government’s response to

his § 2255 petition. The magistrate judge’s Proposed Findings and Recommended

                                            -2-
Disposition made no mention of the Brady issue. In his response to the magistrate

judge’s proposed findings, Espinoza complained of the judge’s failure to address his

Brady claim. The district court’s subsequent adoption of the Proposed Findings and

Recommended Disposition also fails to address the Brady issue.

       Espinoza then filed a motion to alter or amend judgment pursuant to Fed. R. Civ.

P. 59(e) in which he requested the court to rule upon the omitted issues he raised in his “

§ 2255 brief, Memorandum of facts and law, and the reply.” In the Proposed Findings

and Recommended Disposition of the 59(e) motion, the magistrate judge once again

failed to rule on the Brady issue. In his objections to the magistrate judge’s Proposed

Findings and Recommended Disposition of the 59(e) motion, Espinoza once again raised

the Brady issue and the magistrate judge’s failure to address it. Nonetheless, the district

court once again adopted the magistrate judge’s Proposed Findings and Recommended

Disposition without mentioning the Brady claim.

                                             II

       We have observed that a “failure to make any ruling on a claim that was properly

presented in a habeas petition” represents a “defect in the integrity of federal habeas

proceedings.” Peach v. United States, 468 F.3d 1269, 1271 (10th Cir. 2006) (quotation

and alteration omitted). Because the district court never ruled on Espinoza’s Brady

claim, we: (1) VACATED our prior order denying COA with respect to the Brady issue

in the accompanying order granting panel rehearing and now; (2) GRANT a COA on the

Brady claim and; (3) REMAND the matter to the district court with instructions to rule



                                             -3-
on the Brady claim in the first instance.



                                            Entered for the Court



                                            Carlos F. Lucero
                                            Circuit Judge




                                             -4-
