Nos. 2:15-CV-00659-TC and 2:11-CR-00579-TC-1) (D. Utah)
LUCERO, O'BRIEN, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY AND
Terrence L. O'Brien United States Circuit Judge.
7, 2011, Peter Antonio Tubens was traveling on a Greyhound
bus when it stopped at a truck stop for a scheduled passenger
break. During the stop, two Utah Highway Patrol agents, with
the help of their drug dogs, discovered several pounds of
methamphetamine in Tubens' carry-on
luggage. He was arrested, but released from
custody. The next month, Tubens and his then-attorney met
with an FBI agent in Philadelphia where Tubens lived. He
admitted to having traveled to Las Vegas, Nevada, and
receiving methamphetamine from his father-in-law's former
drug source. He was returning to Philadelphia via bus when
indicted with possession with intent to distribute 50 grams
or more of methamphetamine in violation of 21 U.S.C. §
841(a)(1). Upon conviction he was sentenced to 20 years
imprisonment, the mandatory minimum. We affirmed on direct
appeal. See United States v. Tubens, 765 F.3d 1251
(10th Cir. 2014).
filed a pro se 28 U.S.C. § 2255 motion,  claiming his
trial counsel was ineffective for three reasons: (1) counsel
failed to sufficiently advise him concerning the benefits of
pleading guilty and the consequences of his prior
convictions; (2) counsel should have negotiated a lower
sentence in light of a memorandum issued by then-Attorney
General Eric Holder (the Holder memorandum) which directed
prosecutors not to charge the quantity of drugs needed to
trigger mandatory minimum sentences if the defendant
satisfied certain criteria; and (3) counsel was deficient for
not interviewing and investigating other bus passengers and
failing to challenge the methamphetamine's purity or the
government's failure to provide a chemist as a witness on
purity so he could cross-examine him. The judge denied the motion.
decided the first claim was belied by the record. Counsel
informed her prior to trial that Tubens had rejected a
potential plea offer of 20 years. Moreover, both Tubens'
lead counsel and his local counsel submitted affidavits
saying they were concerned about a potential life sentence
due to his prior convictions and informed him multiple times
of the benefits of entering a negotiated plea. He insisted on
going to trial. In the alternative, the judge concluded he
could not show prejudice because the potential plea offer was
20 years, the sentence he received. See Lafler v.
Cooper, 566 U.S. 156, 164 (2012) (when a defendant
rejects a plea offer based on counsel's faulty advice, he
must show, inter alia, that the "sentence . . .
under the offer's terms would have been less
severe than under the . . . sentence that in fact [was]
imposed" to establish he was prejudiced by the faulty
advice) (emphasis added).
regard to counsel's failure to use the Holder memorandum,
the judge decided counsel's representation did not
"f[a]ll below an objective standard of
reasonableness" because the memorandum was not issued
until four days after Tubens' sentencing.
See Strickland v. Washington, 466 U.S. 668,
687-88 (1984) ("When a convicted defendant complains of
the ineffectiveness of counsel's assistance, the
defendant must show that counsel's representation fell
below an objective standard of reasonableness.").
on the last claim, the judge decided Tubens could not show
prejudice. He provided no evidence suggesting the
result of the proceeding would have been different had
counsel performed these tasks, especially in light of his
admission of guilt to the FBI agent in Philadelphia.
Id. at 695 (to establish prejudice, a
"defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
wants to appeal from the denial of his § 2255 motion,
he did not request a certificate of appealability (COA) from
the district judge. He seeks one from this Court.
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). To
make such a showing, Tubens 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." Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks
omitted). He has not met his burden.
one exception, he reiterates verbatim the arguments raised in
his § 2255 motion. He makes no attempt to show how the
judge erred in deciding his claims. He simply says the
government did not respond to and the judge did not decide
all of his claims. That is simply not true. Although they
discussed some of his claims together, the government
addressed and the judge resolved all of them. And, for the
reasons given by the judge, no reasonable jurist could debate
the propriety of the denial of these claims.
exception is a new argument in his COA application. He says
counsel was ineffective for failing to insist upon the
government proving his prior felony drug conviction beyond a
reasonable doubt. He relies on Alleyne v. United
States, where the Supreme Court held the Sixth Amendment
requires any fact increasing a mandatory minimum sentence to
be submitted to a jury. ___ U.S. ___, 133 S.Ct. 2151, 2155
normally do not consider claims raised for the first time in
a COA application. See United States v. Moya, 676
F.3d 1211, 1213 (10th Cir. 2012); see also Singleton v.
Wulff, 428 U.S. 106, 120 (1976) ("It is the general
rule . . . that a federal appellate court does not consider
an issue not passed upon below."). However, the proper
resolution of his Alleyne claim is clear.
Singleton, 428 U.S. at 121 (an issue may be resolved
for the first time on appeal "where the proper
resolution is beyond any doubt"). In
Almendarez-Torres v. United States, the Supreme
Court held the fact of a prior conviction need not be
submitted to a jury and proved beyond a reasonable doubt to
serve as the basis for enhancing a defendant's sentence.
523 U.S. 224, 226-27 (1998). In Alleyne, the Supreme
Court explicitly declined to revisit
Almendarez-Torres. 133 S.Ct. at 2160 n.1; see
also United States v. Ridens, 792 F.3d 1270, 1274 (10th