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  • United States v. Mercado, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit denied Ralph Mercado's request for a certificate of appealability to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence. Mercado claimed ineffective assistance of his two attorneys rendered his guilty plea unknowing and involuntary. However, Mercado did not provide any evidence to support his claim, despite being given the opportunity to obtain affidavits from alleged witnesses. The appeals court concluded Mercado was not entitled to a COA because he did not make a substantial showing that his constitutional rights were denied.

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    Filed: 2006-05-04 Precedential Status: Precedential Docket: 05-3416

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    The United States Court of Appeals for the Tenth Circuit denied Ralph Mercado's request for a certificate of appealability to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence. Mercado claimed ineffective assistance of his two attorneys rendered his guilty plea unknowing and involuntary. However, Mercado did not provide any evidence to support his claim, despite being given the opportunity to obtain affidavits from alleged witnesses. The appeals court concluded Mercado was not entitled to a COA because he did not make a substantial showing that his constitutional rights were denied.

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    26 views6 pages

    United States v. Mercado, 10th Cir. (2006)

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    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied Ralph Mercado's request for a certificate of appealability to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence. Mercado claimed ineffective assistance of his two attorneys rendered his guilty plea unknowing and involuntary. However, Mercado did not provide any evidence to support his claim, despite being given the opportunity to obtain affidavits from alleged witnesses. The appeals court concluded Mercado was not entitled to a COA because he did not make a substantial showing that his constitutional rights were denied.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    May 4, 2006
    Elisabeth A. Shumaker

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    RALPH MERCADO,

    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.

    Petitioner, Ralph Mercado, seeks a certificate of appealability (COA) so


    he can appeal the district courts denial of the motion to vacate, set aside, or
    correct his sentence brought pursuant to 28 U.S.C. 2255. See 28 U.S.C.
    2253(c)(1)(B) (providing that a movant may not appeal the denial of a 2255
    motion unless the movant first obtains a COA). Because Mercado has not made a
    substantial showing of the denial of a constitutional right, we deny his request and
    dismiss this appeal.

    Pursuant to the terms of a plea agreement, Mercado pleaded guilty to


    assaulting a federal correctional officer in violation of 18 U.S.C. 113(a)(4).
    Mercado was sentenced to six months incarceration. Although Mercado waived
    his right to appeal or collaterally challenge his conviction and sentence as part of
    his plea agreement, he filed the instant 2255 motion on February 25, 2004. In
    the motion, Mercado raised one claim; that the ineffective assistance of his two
    attorneys rendered his guilty plea unknowing and involuntary. Specifically,
    Mercado asserted his first attorney retained a private investigator who obtained
    the names of other inmates allegedly willing to testify on his behalf. According
    to Mercado, the testimony of these witnesses would support his assertion that he
    acted in self-defense. Mercado alleged his first attorney was ineffective for not
    forwarding the information and his second attorney was ineffective for not
    requesting it. He also alleged he would not have pleaded guilty if he had known
    witnesses had been identified.
    The district court concluded the waiver in Mercados plea agreement was
    not enforceable as to his ineffective assistance claim. See United States v.
    Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) ([A] plea agreement waiver of
    postconviction rights does not waive the right to bring a 2255 petition based on
    ineffective assistance of counsel claims challenging the validity of the plea or the
    waiver.). The court, however, also concluded Mercado had failed to provide a
    -2-

    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.
    -3-

    See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Thomas v. Gibson, 218
    F.3d 1213, 1222 (10th Cir. 2000).

    -4-

    To be entitled to a COA, Mercado 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 petition 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, 537 U.S. 322, 336 (2003) (quotations
    omitted). In evaluating whether Mercado has satisfied his burden, this court
    undertakes a preliminary, though not definitive, consideration of the [legal]
    framework applicable to each of his claims. Id. at 338. Although Mercado 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.
    Having undertaken a review of Mercados application for a COA and
    appellate filings, the district courts order, and the entire record on appeal
    pursuant to the framework set out by the Supreme Court in Miller-El, this court
    concludes Mercado is not entitled to a COA. The district courts resolution of
    Mercados 2255 motion is not reasonably subject to debate and the issues he

    -5-

    seeks to raise on appeal are not adequate to deserve further proceedings.


    Accordingly, this court denies Mercados request for a COA and dismisses this
    appeal.
    Entered for the Court
    ELISABETH A. SHUMAKER, Clerk
    By

    -6-

    Deputy Clerk

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