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  • United States v. Zamora-Marquez, 10th Cir. (2014)

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    This order denies Jose Manuel Zamora-Marquez's request for a certificate of appealability to challenge the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Zamora-Marquez pleaded guilty to drug charges and received a 10-month sentence, then was detained for immigration proceedings. In his § 2255 motion, he claimed ineffective assistance of counsel and due process violations regarding advice on immigration consequences of his plea. The district court rejected these claims, finding he was adequately informed of the presumptively mandatory removal resulting from his plea. The appellate court denies a COA, concluding reasonable jurists would not debate that Zamora-Marquez failed to show his

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    Filed: 2014-04-30 Precedential Status: Non-Precedential Docket: 13-2046

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    This order denies Jose Manuel Zamora-Marquez's request for a certificate of appealability to challenge the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Zamora-Marquez pleaded guilty to drug charges and received a 10-month sentence, then was detained for immigration proceedings. In his § 2255 motion, he claimed ineffective assistance of counsel and due process violations regarding advice on immigration consequences of his plea. The district court rejected these claims, finding he was adequately informed of the presumptively mandatory removal resulting from his plea. The appellate court denies a COA, concluding reasonable jurists would not debate that Zamora-Marquez failed to show his

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    58 views6 pages

    United States v. Zamora-Marquez, 10th Cir. (2014)

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    This order denies Jose Manuel Zamora-Marquez's request for a certificate of appealability to challenge the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Zamora-Marquez pleaded guilty to drug charges and received a 10-month sentence, then was detained for immigration proceedings. In his § 2255 motion, he claimed ineffective assistance of counsel and due process violations regarding advice on immigration consequences of his plea. The district court rejected these claims, finding he was adequately informed of the presumptively mandatory removal resulting from his plea. The appellate court denies a COA, concluding reasonable jurists would not debate that Zamora-Marquez failed to show his

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    of 6

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS April 30, 2014


    TENTH CIRCUIT

    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    JOSE MANUEL ZAMORAMARQUEZ,

    No. 13-2046
    (D.C. Nos. 2:12-CV-00670-RB-LAM
    and 2:11-CR-00415-RB-1)
    (D.N.M.)

    Defendant-Appellant.

    ORDER DENYING CERTIFICATE


    OF APPEALABILITY *

    Before KELLY, HOLMES, and MATHESON, Circuit Judges.

    This is a counseled 28 U.S.C. 2255 proceeding. Appellant Jose Manuel


    Zamora-Marquez seeks a certificate of appealability (COA) to challenge the
    district courts denial of his motion under 2255 to vacate, set aside or correct
    his sentence. We deny Mr. Zamora-Marquezs request for a COA and dismiss
    this matter.

    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 Federal Rule of Appellate Procedure 32.1 and
    Tenth Circuit Rule 32.1.

    I
    Mr. Zamora-Marquez pleaded guilty to possession with intent to distribute
    fifty kilograms or more of marijuana in violation of 21 U.S.C. 841(a) and
    (b)(1)(C), and 18 U.S.C. 2. He received a ten-month sentence. After serving
    this sentence, Mr. Zamora-Marquez was detained by U.S. immigration authorities.
    While in detention, 1 he filed the instant 2255 motion. Mr. Zamora-Marquez
    ultimately was removed from the country by the immigration authorities. A
    magistrate judge issued a report and recommendation (R&R), finding that Mr.
    Zamora-Marquezs claims were meritless, and (over Mr. Zamora-Marquezs
    objection) the district court adopted the R&R. The court also denied him a COA.
    Mr. Zamora-Marquez then filed an application for a COA with this court.
    II
    A
    A COA is a jurisdictional prerequisite to our review of the merits of an
    appeal from a district courts denial of a 2255 motion. See 28 U.S.C.
    2253(c)(1)(B); United States v. Tony, 637 F.3d 1153, 1157 (10th Cir. 2011).
    We will issue a COA only if the [movant] has made a substantial showing of the

    Because of his immigration-related detention, Mr. Zamora-Marquez


    satisfies the in-custody requirement for purposes of statutory jurisdiction under
    2255. See United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994); cf.
    Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (The federal habeas corpus
    statute requires that the applicant must be in custody when the application for
    habeas corpus is filed.).
    -2-

    denial of a constitutional right. 28 U.S.C. 2253(c)(2). To satisfy this standard,


    the movant must demonstrate that reasonable jurists could debate whether . . .
    the [ 2255 motion] should have been resolved in a different manner or that the
    issues presented were adequate to deserve encouragement to proceed further.
    Tony, 637 F.3d at 1157 (omission in original) (quoting Slack v. McDaniel, 529
    U.S. 473, 484 (2000)) (internal quotation marks omitted).
    B
    In his COA application, Mr. Zamora-Marquez argues that the district court
    erred in resolving his ineffective-assistance-of-counsel claim and in concluding
    that he failed to establish a violation of his due-process rights. Addressing Mr.
    Zamora-Marquezs ineffective-assistance-of-counsel claim under the rubric of
    Strickland v. Washington, 466 U.S. 668, 688 (1984), we conclude that reasonable
    jurists could not debate the district courts conclusion that this claim failed
    because Mr. Zamora-Marquez was adequately informed of the immigration
    consequences of his guilty plea. And for similar reasons, we also determine that
    reasonable jurists also could not debate the district courts decision to reject his
    due-process claim.
    1
    With regard to Mr. Zamora-Marquezs claim of ineffective assistance of
    counsel, Mr. Zamora-Marquez argued that his counsel had given him false
    assurance and misled him about the immigration consequences of his guilty
    -3-

    plea. Aplt. App. at 313 (Pl.s Objections to R&R, filed Jan. 24, 2013). The
    district court, however, found these claims to be without merit. In this regard,
    Mr. Zamora-Marquez admitted in an affidavit that he met with his counsel about
    four times before [he] plead[ed] guilty. Id. at 132 (Aff., dated June 14, 2012).
    Mr. Zamora-Marquez also certified in both the plea agreement and at the plea
    hearing that his counsel had informed him of the immigration consequences of his
    plea. Furthermore, the district court noted that the plea agreement clearly and
    succinctly sets forth the consequences of Mr. Zamora-Marquez[s] guilty plea.
    Id. at 335 (Order, filed Feb. 13, 2013). In particular, the court found that Mr.
    Zamora-Marquez was adequately informed that he faced removal.
    Therefore, the district court concluded that Mr. Zamora-Marquez
    failed to establish that his counsels representation fell below an objective
    standard of reasonableness under Strickland. See 466 U.S. at 688 (requiring a
    showing that attorney made errors so serious that attorneys performance could
    not be considered reasonable[] under prevailing professional norms); Hill v.
    Lockhart, 474 U.S. 52, 58 (1985) (holding that the Strickland test applies to
    challenges to guilty pleas based on ineffective assistance of counsel). Given its
    determination that Mr. Zamora-Marquez could not prevail on the first prong of
    the Strickland test, the court rejected his ineffective-assistance-of-counsel claim.
    See Strickland, 466 U.S. at 697 ([T]here is no reason for a court deciding an
    ineffective assistance claim . . . even to address both components of the inquiry if
    -4-

    the defendant makes an insufficient showing on one.). Having thoroughly


    reviewed the record, we believe that reasonable jurists could not debate the
    district courts conclusion on this point. Therefore, Mr. Zamora-Marquez is not
    entitled to a COA on this claim.
    2
    As for Mr. Zamora-Marquezs due-process claim, he argues that the
    language of the plea agreement appears applicable to all criminal cases regarding
    aliens and, therefore, is too general to meaningfully inform him of his
    immigration consequences. However, the district court found that this claim
    lacked merit because his attorney and the court fully informed Mr. ZamoraMarquez of the consequences of his guilty plea. Beyond the express terms of his
    plea agreement, Mr. Zamora-Marquez was informed by the advisements of his
    counsel and the court that he faced removal. See, e.g., Aplt. App. at 108, 111
    (Plea Agreement, filed Apr. 6, 2011) (including counsels certification that he
    fully advised Mr. Zamora-Marquez of the consequences of entering into this
    [plea] agreement, which stated that, due to Mr. Zamora-Marquezs offense,
    removal is presumptively mandatory); id. at 122 (Tr. of Plea Hrg, dated Apr. 6,
    2011) (noting Mr. Zamora-Marquezs answer of Yes to the courts inquiry as to
    whether he underst[oo]d that as a citizen of another country, [he] will likely be
    deported or removed from the United States). Furthermore, in his plea
    agreement, Mr. Zamora-Marquez expressly agreed to any immigration
    -5-

    consequences, including possible automatic removal. Id. at 108. He also


    certified in the agreement that he understood the terms of his plea and
    voluntarily agree[d] to them. Id. at 111. Indeed, as we read it, the record
    clearly reveals that Mr. Zamora-Marquez was informed about the consequences of
    his guilty plea and his plea was made knowingly, intelligently, and voluntarily.
    See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998). Thus, we
    conclude that reasonable jurists could not debate the district courts determination
    that Mr. Zamora-Marquezs due-process claim lacks merit.
    III
    Based on the foregoing, and for substantially the reasons stated by the
    district court, we DENY Mr. Zamora-Marquez a COA and DISMISS this matter.
    Entered for the Court

    JEROME A. HOLMES
    Circuit Judge

    -6-

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