Filed: May 04, 2006
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 4, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-3416 (District of Kansas) v. (D.C. Nos. 04-CV-3067-KHV and 01-CR-20147-01-KHV) RALPH MERCADO, Defendant-Appellant. ORDER Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges. Petitioner, Ralph Mercado, seeks a certificate of appealability (“COA”) so he can appeal the district court’s denial of the
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 4, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-3416 (District of Kansas) v. (D.C. Nos. 04-CV-3067-KHV and 01-CR-20147-01-KHV) RALPH MERCADO, Defendant-Appellant. ORDER Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges. Petitioner, Ralph Mercado, seeks a certificate of appealability (“COA”) so he can appeal the district court’s denial of the ..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-3416
(District of Kansas)
v.
(D.C. Nos. 04-CV-3067-KHV and
01-CR-20147-01-KHV)
RALPH MERCADO,
Defendant-Appellant.
ORDER
Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.
Petitioner, Ralph Mercado, seeks a certificate of appealability (“COA”) so
he can appeal the district court’s denial of the motion to vacate, set aside, or
correct his sentence brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. §
2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255
motion unless the movant first obtains a COA). Because Mercado has not made a
substantial showing of the denial of a constitutional right, we deny his request and
dismiss this appeal.
Pursuant to the terms of a plea agreement, Mercado pleaded guilty to
assaulting a federal correctional officer in violation of 18 U.S.C. § 113(a)(4).
Mercado was sentenced to six months’ incarceration. Although Mercado waived
his right to appeal or collaterally challenge his conviction and sentence as part of
his plea agreement, he filed the instant § 2255 motion on February 25, 2004. In
the motion, Mercado raised one claim; that the ineffective assistance of his two
attorneys rendered his guilty plea unknowing and involuntary. Specifically,
Mercado asserted his first attorney retained a private investigator who obtained
the names of other inmates allegedly willing to testify on his behalf. According
to Mercado, the testimony of these witnesses would support his assertion that he
acted in self-defense. Mercado alleged his first attorney was ineffective for not
forwarding the information and his second attorney was ineffective for not
requesting it. He also alleged he would not have pleaded guilty if he had known
witnesses had been identified.
The district court concluded the waiver in Mercado’s plea agreement was
not enforceable as to his ineffective assistance claim. See United States v.
Cockerham,
237 F.3d 1179, 1187 (10th Cir. 2001) (“[A] plea agreement waiver of
postconviction rights does not waive the right to bring a § 2255 petition based on
ineffective assistance of counsel claims challenging the validity of the plea or the
waiver.”). The court, however, also concluded Mercado had failed to provide a
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sufficient factual basis for his assertion counsels’ alleged deficient performance
affected the outcome of the plea process. See Miller v. Champion,
262 F.3d 1066,
1072 (10th Cir. 2001). The district court did not dismiss Mercado’s § 2255
motion, but provided Mercado with an opportunity to file affidavits of the alleged
witnesses establishing (1) whether the individuals witnessed the assault that
formed the basis for the charge against Mercado, (2) that they were willing to
testify, and (3) the nature of their proposed testimony. The court appointed
counsel to assist Mercado in obtaining the affidavits.
On April 20, 2005, the court issued a show cause order requesting counsel
to advise the court regarding the status of the proposed affidavits. Counsel
responded on June 1, 2005 and June 13, 2005 informing the court he was unable
to contact one alleged witness and had received no response from the other four
witnesses. The district court then denied Mercado’s § 2255 motion, concluding
he had failed to provide sufficient evidence to support his ineffective assistance
claim.
In his application for a COA and appellate brief, Mercado does not
challenge the district court’s conclusion his claim was not supported by any
evidence. Instead, he asserts his postconviction counsel was ineffective for
failing to obtain the affidavits. We must reject Mercado’s argument because a
petitioner has no constitutional right to counsel in postconviction proceedings.
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See Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Thomas v. Gibson,
218
F.3d 1213, 1222 (10th Cir. 2000).
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To be entitled to a COA, Mercado 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 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 Mercado 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 Mercado 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 Mercado’s application for a COA and
appellate filings, 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 Mercado is not entitled to a COA. The district court’s resolution of
Mercado’s § 2255 motion is not reasonably subject to debate and the issues he
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seeks to raise on appeal are not adequate to deserve further proceedings.
Accordingly, this court denies Mercado’s request for a COA and dismisses this
appeal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
By
Deputy Clerk
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