FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               September 29, 2015
                         FOR THE TENTH CIRCUIT
                     _________________________________ Elisabeth A. Shumaker
                                                                   Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                      No. 15-8035
                                            (D.C. Nos. 2:15-CV-00004-NDF and
MIGUEL ANGEL ORDAZ,                                1:10-CR-329-NDF-3)
                                                         (D. Wyo.)
      Defendant - Appellant.
                   _________________________________

          ORDER DENYING A CERTIFICATE OF APPEALABILITY
                    AND DISMISSING THE APPEAL
                  _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                _________________________________

      This case grew out of the government’s investigation of a suspected drug

dealer, Mr. Miguel Ordaz. The investigation led to a search of Mr. Ordaz’s house,

where agents found a black bag containing a chemical substance and a machine

gun. This discovery led to a conviction on multiple charges, including (1)

possession of methamphetamine with intent to distribute and (2) possession of a

machine gun in furtherance of a drug trafficking crime.

      After unsuccessfully appealing, Mr. Ordaz moved for vacatur of the

conviction under 28 U.S.C. § 2255, arguing that

      !     on the methamphetamine charge, his trial counsel was ineffective for
            failing to request a sample of the drug so that he could test it and
      !      on the machine-gun charge, the evidence was insufficient because the
             machine gun was inoperable and could not have been used to further
             a drug trafficking crime.

The district court denied relief, and Mr. Ordaz wants to appeal. To do so, he

needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). The district

court declined to issue the certificate. Like the district court, we decline to issue

the certificate. As a result, we dismiss the appeal.

                                Mr. Ordaz’s Burden

      We can issue a certificate of appealability only if Mr. Ordaz has made “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2012). To satisfy this requirement, Mr. Ordaz must show “that the

district court’s resolution of the constitutional claim was either ‘debatable or

wrong.’” Laurson v. Leyba, 

, 1232 (10th Cir. 2007) (quoting Slack

v. McDaniel, 

, 484 (2000)).

                          The Methamphetamine Charge

      The first claim involves ineffective assistance of counsel on the charge

involving possession of methamphetamine with intent to distribute. This

conviction was based on the substance found in Mr. Ordaz’s bag. The government

ran tests, which identified the substance as a combination of methamphetamine

and a cutting agent (called “M.S.M.”). Mr. Ordaz believes that independent tests

would have showed that the substance consisted solely of the cutting agent.




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      If we were to entertain an appeal, Mr. Ordaz would need to show (1)

deficiency in his legal representation and (2) prejudice from that deficiency.

Strickland v. Washington, 

, 687 (1984).

      Applying this test, the district court concluded that the claim fails under

United States v. Baca, 

, 1361 (10th Cir. 1982). There we rejected a

similar claim, reasoning that the attorney could have made a strategic decision to

bypass further testing because of uncertainty regarding the eventual 

. If the results ended up positive, they would have strengthened the

government’s case. 

Mr. Ordaz’s claim is not reasonably debatable. At trial, his

attorney vigorously attacked the government’s tests. If the attorney were to obtain

his own tests, a positive result would have prevented this line of attack. Thus, our

precedent in Baca would lead any reasonable jurist to reject Mr. Ordaz’s claim.

                            The Machine-Gun Charge

      Mr. Ordaz also argues that because the machine gun was inoperable, it

could not have been used to further a drug crime. But Mr. Ordaz raised the same

argument in his direct appeal, and a panel of our court rejected this argument.

United States v. Renteria, 

, 1255 (10th Cir. 2013). 1 Because we


1
       Mr. Ordaz states that his appellate counsel failed to raise this issue in the
direct appeal. Appellant’s Br. at 17. Mr. Ordaz is mistaken, for his appellate
attorney challenged the sufficiency of the evidence in part because the machine
gun was inoperable:

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rejected the claim on the merits, Mr. Ordaz cannot renew the claim through a

§ 2255 motion. See United States v. Warner, 

, 291 (10th Cir. 1994).

Thus, no reasonable jurist could credit Mr. Ordaz’s reassertion of his argument

that the gun was inoperable.

                                    Conclusion

      In these circumstances, we conclude that Mr. Ordaz’s claims are not




            In addition, testimony clearly shows that the weapon when seized
      was found in “pieces.” Despite the government’s attempt to show that
      the weapon could be reassembled quickly-by the way, by an expert, the
      gun was nevertheless found in parts in a black duffel bag. In fact
      testimony shows that a pin to connect the stock to the gun was missing.
      ATF Agent Knapp testified that he supplied a pin to connect the stock
      to the rest of the gun. Tr. Vol. XVI p. 40. He also testified that he
      “experienced quite a few jams and misfires.” 

             Agent Knapp further testified that he had “to take a punch to the
      extractor spring and basically straighten it out.” 

softens
      the faults of the weapon with the statement that the gun still was potent
      because he “still managed to fire one ten round automatic burst.” 

Miguel Angel Ordaz’ Opening Br. at 19-20, United States v. Renteria, 

(10th Cir. 2013) (No. 12-8019). In rejecting the argument, we noted Mr.
Ordaz’s emphasis “on the fact that a missing pin [was] needed to assemble the
gun.” 

.

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reasonably debatable. With this conclusion, we (1) decline to issue a certificate of

appealability and (2) dismiss the appeal.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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