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United States v. Delgado-Ornelas, 10th Cir. (2017)

This order denies a certificate of appealability and dismisses an appeal in a case where the defendant sought post-conviction relief under 28 U.S.C. § 2255 based on ineffective assistance of counsel. The district court denied relief, finding that the plea colloquy contradicted the alleged promise of a lower sentence and that any deficient performance was not prejudicial. The appellate court agrees, concluding the district court's reasoning is not reasonably debatable and thus declines to issue a certificate of appealability, requiring dismissal of the appeal.
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0% found this document useful (0 votes)
48 views2 pages

United States v. Delgado-Ornelas, 10th Cir. (2017)

This order denies a certificate of appealability and dismisses an appeal in a case where the defendant sought post-conviction relief under 28 U.S.C. § 2255 based on ineffective assistance of counsel. The district court denied relief, finding that the plea colloquy contradicted the alleged promise of a lower sentence and that any deficient performance was not prejudicial. The appellate court agrees, concluding the district court's reasoning is not reasonably debatable and thus declines to issue a certificate of appealability, requiring dismissal of the appeal.
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FILED

United States Court of Appeals


UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 23, 2017


_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-3053
(D.C. Nos. 6:15-CR-10141-EFM-1
FERNANDO DELGADO- and 6:16-CV-01422-EFM)
ORNELAS, (D. Kan.)

Defendant - Appellant.
_________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY AND


DISMISSING THE APPEAL
_________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.


_________________________________

This appeal involves the denial of relief under 28 U.S.C. 2255. The

threshold issue is whether the defendant has justified a certificate of

appealability. We answer no and decline to issue a certificate of

appealability. This decision requires us to dismiss the appeal.

The defendant, Mr. Fernando Delgado-Ornelas, wants to appeal a

conviction based on ineffective assistance of counsel. Mr. Delgado was

charged in federal court with illegal reentry after removal based on a

conviction for an aggravated felony. After conferring with counsel, Mr.

Delgado pleaded guilty. The district court accepted the plea and imposed a
prison term of 37 months. According to Mr. Delgado, his attorney provided

ineffective assistance by promising a lower sentence. The district court

rejected this claim, reasoning that the plea colloquy belied the alleged

promise and that the alleged ineffectiveness would not have been

prejudicial.

To appeal this ruling, Mr. Delgado-Ornelas needs a certificate of

appealability. 28 U.S.C. 2253(c)(1)(B). Such a certificate may issue only

if Mr. Delgado-Ornelas has made a substantial showing of the denial of a

constitutional right. 28 U.S.C. 2253(c)(2); MillerEl v. Cockrell, 537

U.S. 322, 336 (2003). Where, as here, the district court has dismissed a

petitioners 2255 claim on the merits, the petitioner must show that the

district courts conclusion was subject to reasonable debate. Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

In our view, the district courts reasoning is not subject to reasonable

debate. As a result, we decline to issue a certificate of appealability. And

in the absence of a certificate of appealability, we must dismiss the appeal.

Entered for the Court

Robert E. Bacharach
Circuit Judge

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