United States v. Zamora-Marquez, 10th Cir. (2014)
United States v. Zamora-Marquez, 10th Cir. (2014)
Elisabeth A. Shumaker
Clerk of Court
No. 13-2046
(D.C. Nos. 2:12-CV-00670-RB-LAM
and 2:11-CR-00415-RB-1)
(D.N.M.)
Defendant-Appellant.
This order is not binding precedent, except under the doctrines of law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
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
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JEROME A. HOLMES
Circuit Judge
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