FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 23, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,               Nos. 12-1088 and 12-1089
       v.                                                (D. Colorado)
 CHARLES CASTANEDA,                            (D.C. Nos. 1:10-CV-02533-WYD
                                                 and 1:07-CR-00185-WYD-4)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.




      A jury found Petitioner Charles Castaneda guilty of committing two drug-

trafficking offenses and using the telephone to facilitate those offenses.

Castaneda’s convictions were affirmed by this court. United States v. Castaneda,

368 F. App’x 859, 860 (10th Cir. Feb. 25, 2010). Castaneda then filed a motion

to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising

ineffective assistance of counsel claims. He asserted both trial and appellate

counsel were ineffective for failing to challenge an alleged lack of documentation

supporting the issuance of a federal wiretap. He also argued counsel was

ineffective for failing to challenge the constitutionality of the Controlled

Substances Act as violative of the Commerce Clause. The district court denied
both claims on the merits, concluding Castaneda did not meet his burden of

showing counsel failed to pursue an issue that had any merit and, thus, he could

not show deficient performance on the part of either his trial or appellate counsel.

See Strickland v. Washington, 

, 688-89 (1984); see also Cooks v.

Ward, 

, 1292-93 (10th Cir. 1998) (holding a court may address

Strickland’s performance and prejudice prongs “in any order, but need not address

both if [movant] fails to make a sufficient showing of one”). Accordingly, the

district court denied Castaneda’s § 2255 motion.

      After his motion was denied by the district court, Castaneda filed a motion

to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). Respondent

filed an opposition to the motion, arguing, inter alia, that it was actually a second

or successive § 2255 motion for which Castaneda needed preauthorization from

this court. See Gonzales v. Crosby, 

, 534 (2005) (“[A] Rule 60(b)

motion that seeks to revisit the federal court’s denial of the merits of a claim for

relief should be treated as a successive habeas petition.”); In re Cline, 

, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to

address the merits of a second or successive § 2255 . . . claim until this court has

granted the required authorization.”); see also Kirby v. Attorney General, No. 11-

2082, 

, at *4 (10th Cir. Sept. 19, 2011) (unpublished order

denying certificate of appealability to petitioner seeking to appeal district court’s

characterization of his Rule 59(e) motion as a second or successive habeas

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petition). The district court agreed and exercised its discretion to dismiss the

motion for lack of jurisdiction, concluding it was not in the interest of justice to

transfer the request to this court. See In re Cline, 531 F.3d at 1251 (holding a

district court may transfer an unauthorized successive habeas petition to this court

if it is in the interest of justice to do so or, alternatively, may dismiss it for lack

of jurisdiction). On December 12, 2011, Castaneda filed a motion seeking

sanctions against Respondent, arguing the document Respondent filed in

opposition to his ostensible Rule 59(e) motion violated Fed. R. Civ. P. 11. The

district court considered Castaneda’s assertions but denied his motion.

       Castaneda seeks to appeal all these adverse rulings. He cannot, however,

proceed on appeal unless he first obtains a certificate of appealability (“COA”).

See 28 U.S.C. § 2253(c)(1)(B) (providing a movant may not appeal a “final order

in a proceeding under section 2255” unless he first obtains a COA). To be

entitled to a COA, Castaneda 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 [motion] 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, 

, 336 (2003) (quotations omitted).

In evaluating whether Castaneda has satisfied his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

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applicable to each of his claims. Id. at 338. Although Castaneda 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. (quotations omitted).

      This court has reviewed Castaneda’s appellate briefs, the district court’s

orders, and the entire record on appeal pursuant to the framework set out by the

Supreme Court in Miller-El and concludes Castaneda is not entitled to a COA on

any of his claims. No jurist of reason could debate whether the district court

correctly concluded the ineffective assistance claims raised in Castaneda’s § 2255

motion were meritless. Neither is it debatable that Castaneda’s Rule 59(e) motion

is actually a successive § 2255 motion and it was not in the interest of justice to

transfer the petition to this court. Finally, the correctness of the district court’s

denial of Castaneda’s motion seeking sanctions against Respondent is also not

debatable. Accordingly, we deny Castaneda’s requests for certificates of

appealability and dismiss these appeals. Respondent’s motion for an order

requiring Castaneda to obtain a COA in Appeal No. 12-1089 is denied as moot.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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