JEROME A. HOLMES, Circuit Judge.
Jacinto Hernandez, a federal prisoner proceeding pro se,
In 2006, Mr. Hernandez pleaded guilty to numerous drug charges arising out of a drug-trafficking scheme, including one count of conspiracy to distribute more than
Mr. Hernandez then filed a § 2255 motion with the district court. In his motion and subsequent filings pertaining to the motion, Mr. Hernandez asserted several ineffective-assistance-of-counsel claims relating to the two court-appointed attorneys that represented him before the district court, as well as claims asserting errors committed by the district court.
Mr. Hernandez now seeks a COA from this court, which would enable him to appeal from the district court's denial of his § 2255 motion, and also challenges the district court's denial of his request for an evidentiary hearing in connection with his § 2255 motion. With this court, Mr. Hernandez filed a four-page application for a COA, but did not file a separate opening brief in support of his desired appeal from the district court's denial of his § 2255 motion.
A COA is a jurisdictional prerequisite to this court's review of a § 2255 motion. 28 U.S.C. § 2253(c)(1)(B); accord Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.2009) (citing Miller-El v. Cockrell,
In assessing whether to grant a COA, the "threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." United States v. Silva, 430 F.3d 1096, 1100 (10th Cir.2005) (quoting Miller-El, 537 U.S. at 336, 123 S.Ct. 1029) (internal quotation marks omitted). Although an applicant "is not required to prove the merits of his case, he must demonstrate `something more than the absence of frivolity or the existence of mere good faith' on his part." Id. (quoting Miller-El, 537 U.S. at 338, 123 S.Ct. 1029).
In this instance, Mr. Hernandez has failed to make a substantial showing of the denial of a constitutional right and, therefore, we deny his request for a COA and dismiss his appeal. In his COA application, Mr. Hernandez does not specifically discuss the district court's resolution of any of his habeas claims, much less explain how reasonable jurists could debate the correctness of that resolution.
Even if Mr. Hernandez's appellate filing could be read as making arguments aimed at the district court's resolution of his specific habeas claims, we conclude that those arguments are too inadequately presented to be legally cognizable here. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) ("[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief." (emphasis added)); see also United States v. Pursley, 577 F.3d 1204, 1231 n. 17 (10th Cir.2009) ("[A]lthough Mr. Pursley alluded to the ex parte issue in his appellate brief, that skeletal reference does not present a cognizable issue for appellate review."), cert. denied, ___ U.S. ___, 130 S.Ct. 1098, ___ L.Ed.2d ___ (2010). Mr. Hernandez's pro se status does not relieve him of the obligation to point us in the direction of the alleged errors of the district court. If that were not true, we would be placed in the position of being Mr. Hernandez's advocate and our precedent does not permit us to step into that role. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.2009) ("[B]ecause Pinson appears pro se, we must construe his arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate."), cert. denied, ___ U.S. ___, 130 S.Ct. 1548, 176 L.Ed.2d 139 (2010); cf. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (stating that although "[a] pro se litigant's pleadings are to be construed liberally," it is not "the proper function of the district court to assume the role of advocate for the pro se litigant," and "[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based").
Mr. Hernandez cannot avoid the consequences of his inadequate appellate briefing by incorporating his filings in the district court. As stated above, Mr. Hernandez's application attempts to "incorporate[ ] by ... reference as though fully set forth hereat [sic], each and every allegation set forth in all prior filings in this matter." Aplt. Application for COA at 2. This he cannot do. Under Tenth Circuit Rules, "[i]ncorporating by reference portions of lower court or agency briefs or pleadings is disapproved." 10th Cir. R. 28.4 (emphasis added). It should be patent that when the proposed incorporation is as all-encompassing as that sought by Mr. Hernandez, our disapproval results in an outright prohibition. See Wardell v. Duncan, 470 F.3d 954, 963-64 (10th Cir.2006) (holding that the appellant was not permitted to incorporate district court filings into an appellate brief by reference, and that his "pro se status d[id] not except him from such established rules"); Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir.1998) (concluding that it is not "acceptable argument" for plaintiffs to "attempt to adopt the materials they filed in the district court rather than setting forth in their appellate brief their quarrel with the district court's reasoning"). Consequently, Mr. Hernandez has failed to make a substantial showing of the denial of a constitutional right; that is, he has failed to demonstrate to this court—as to each of his habeas claims—"that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further." Dulworth, 496 F.3d
Based on the foregoing, we
After examining the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.