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United States v. Mercado, 10th Cir. (2006)
United States v. Mercado, 10th Cir. (2006)
TENTH CIRCUIT
May 4, 2006
Elisabeth A. Shumaker
Clerk of Court
No. 05-3416
(District of Kansas)
(D.C. Nos. 04-CV-3067-KHV and
01-CR-20147-01-KHV)
Defendant-Appellant.
ORDER
Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.
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 Mercados 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 Mercados 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 courts 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 Mercados 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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Deputy Clerk