Filed: Aug. 23, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 23, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-8045 (D.C. Nos. 1:15-CV-00172-SWS & JOSE ALVAREZ, 1:10-CR-00203-SWS-1) (D. Wyo.) Defendant - Appellant. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before HARTZ, MATHESON, and McHUGH, Circuit Judges. _ Jose Alvarez, a federal prisoner proceeding pro se, seeks a certificate of ap
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 23, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-8045 (D.C. Nos. 1:15-CV-00172-SWS & JOSE ALVAREZ, 1:10-CR-00203-SWS-1) (D. Wyo.) Defendant - Appellant. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before HARTZ, MATHESON, and McHUGH, Circuit Judges. _ Jose Alvarez, a federal prisoner proceeding pro se, seeks a certificate of app..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 23, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-8045
(D.C. Nos. 1:15-CV-00172-SWS &
JOSE ALVAREZ, 1:10-CR-00203-SWS-1)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Jose Alvarez, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s decision denying in part and dismissing
in part his motion for relief under Fed. R. Civ. P. 60(b). We deny a COA and dismiss this
matter.
Mr. Alvarez was convicted of conspiracy to possess with intent to distribute, and
to distribute, methamphetamine, cocaine and marijuana. He was sentenced to 360
months in prison. On direct appeal, we affirmed his sentence. United States v. Alvarez,
565 F. App’x 709, 710 (10th Cir. 2014). He later filed a pro se motion under 28 U.S.C.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
§ 2255, which the district court denied. This court dismissed Mr. Alvarez’s attempt to
appeal from that decision because his notice of appeal was not timely filed.
Earlier this year, Mr. Alvarez filed a Rule 60(b) motion in which he argued that
(1) the government committed fraud on the court in its response to his § 2255 motion;
and (2) he should not have been designated as a career offender because two of his prior
convictions were improperly counted as qualifying predicate offenses. The district court
denied the first claim. It then determined that the second claim was an unauthorized
second or successive § 2255 claim and dismissed it for lack of jurisdiction. Mr. Alvarez
now seeks a COA to appeal from the district court’s decision.
To obtain a COA from the district court’s procedural rulings, Mr. Alvarez must
show “that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).1
A prisoner may not file a second or successive § 2255 motion unless he first
obtains an order from the circuit court authorizing the district court to consider the
motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district
1
We have explained that the denial of a Rule 60(b) motion in the context of a
habeas petition is a procedural ruling subject to Slack’s two-part COA standard.
Dulworth v. Jones, 496 F.3d 1133, 1138 (10th Cir. 2007), abrogated in part by Harbison
v. Bell,
556 U.S. 180 (2009). The district court’s decision to construe a pleading as a
second or successive § 2255 claim and to dismiss it for lack of jurisdiction is also a
procedural ruling subject to the Slack standard. See United States v. Harper,
545 F.3d
1230, 1233 (10th Cir. 2008).
2
court lacks jurisdiction to address the merits of a second or successive § 2255 motion.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
A Rule 60(b) motion should be treated as a second or successive § 2255 motion “if
it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s
underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). A
Rule 60(b) motion may not be treated as a successive § 2255 motion if it “challenges a
defect in the integrity of the federal habeas proceeding.”
Id. at 1216.
Mr. Alvarez argued in the first claim in his Rule 60(b) motion that there was a
defect in the integrity of his § 2255 proceeding because the government had committed
fraud on the court in its response to his § 2255 motion. In his § 2255 motion, he asserted
a claim for ineffective assistance of counsel based on his attorney’s failure to convey the
government’s plea offer to him. In its response to his motion, the government stated that
there was no record of a formal plea offer. The district court ultimately denied the claim
because there was no evidence of a formal plea offer. But Mr. Alvarez contended in his
Rule 60(b) motion that documents he obtained through the Freedom of Information Act
showed that there was a plea offer.
The district court denied this Rule 60(b) claim on the merits. The court explained
that none of the documents Mr. Alvarez submitted “establishe[d] that the government
ever made a formal plea offer that Defendant’s counsel failed to communicate to him.
Rather, the documents simply confirm plea negotiations were taking place.” R., Vol. 1 at
83. In his COA application, Mr. Alvarez fails to point to anything in the documents he
submitted that shows the government made a formal plea offer to his attorney that was
3
not communicated to him. The letter from his attorney that he references indicates that
there were ongoing plea negotiations but it also indicates that, at that time, Mr. Alvarez
wanted to go to trial because the evidence available to his attorney was not conclusive of
guilt. His attorney was therefore requesting in that letter that he meet with the prosecutor
to go over the evidence and how it was linked to his client. This letter does not
demonstrate that the government committed fraud in its response to Mr. Alvarez’s § 2255
motion. Reasonable jurists would not debate the district court’s resolution of this
Rule 60(b) claim.
In the second claim of his Rule 60(b) motion, Mr. Alvarez asserted that two of his
prior convictions were erroneously treated as predicate offenses to qualify him as a career
offender under the sentencing guidelines. In his § 2255 motion, he raised a similar claim,
asserting that his counsel was ineffective for failing to research and raise challenges to
the use of these two convictions to qualify him as a career offender. The district court
rejected the ineffective-assistance claim in the § 2255 motion after concluding that
Mr. Alvarez’s advisory sentencing guideline range would have been the same even
without the career offender designation and therefore he could not show prejudice from
any alleged deficient performance.
In considering this claim in Mr. Alvarez’s Rule 60(b) motion, the district court
explained that “[b]ecause the success of Defendant’s claim depends on a determination
that the Court either incorrectly determined his sentence in the first instance or erred on
the merits in denying his initial § 2255 motion with respect to this issue, Defendant’s
Rule 60(b) motion as to this claim must be considered a second or successive § 2255
4
motion.” R., Vol. 1 at 84. In his COA application, Mr. Alvarez appears to be arguing the
merits of his claim by “challenging his status as a career offender” and asserting that “[a]
court may look to certain other pieces of evidence in seeking to ascertain whether [his]
conviction was for conduct under the guidelines definition.” COA App. at 8. He fails to
address how the court erred in construing this claim as a second or successive § 2255
claim. Reasonable jurists could not debate the district court’s procedural ruling that
Mr. Alvarez’s challenge to his status as a career offender is an unauthorized second or
successive § 2255 claim that must be dismissed for lack of jurisdiction.
Accordingly, we deny a COA and dismiss this matter.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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