FILED

United States Court of Appeals

Tenth Circuit

October 14, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO ESPINOZA, a/k/a

MIGUEL ANGEL MANZO,

Defendant - Appellant.

No. 16-2176

(D.C. No. 1:08-CV-00479-RB-KBM)

(D.C. No. 2:04-CR-00852-RB-1)

(D.N.M.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.

Alejandro Espinoza appeals from the district court’s decisions denying

reconsideration of its dismissal of his 28 U.S.C. § 2255 motion. To pursue this

appeal, Mr. Espinoza must obtain a certificate of appealability (COA) from this

court. See, e.g., Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2006). But

to do so Mr. Espinoza must first make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to establish

“that reasonable jurists could debate whether . . . the petition should have been

*

 This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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) (internal quotation marks omitted). And this much Mr. Espinoza has not

done. 

The reason why lies in the complicated procedural history of this case. The

district court originally denied Mr. Espinoza’s § 2255 motion in 2009. We then

denied a COA as to most of his claims, including those at issue here. United

States v. Espinoza, 392 F. App’x 666, 668-70 (10th Cir. 2010), vacated in part on

reh’g, 421 F. App’x 817, 818-19 (10th Cir. 2010). Proceedings on his remaining

claim ended after the district court denied relief and this court denied a COA. 

United States v. Espinoza, 545 F. App’x 783, 787 (10th Cir. 2013). Mr. Espinoza

then filed a motion under Fed. R. Civ. P. 60(b) to set aside the judgment, alleging

among other errors that the district court had failed to rule on his ineffectiveness

claims. After another excursion to this court to resolve a procedural question,

United States v. Espinoza, 622 F. App’x 745, 747-48 (10th Cir. 2015), the district

court denied the Rule 60(b) motion. United States v. Espinoza, No. CIV 08-0479

RB/KBM, 2016 WL 3094776, at *2-4 (D.N.M. Mar. 30, 2016). It held that it had

indeed ruled on those claims and that they are meritless in any case. In reply, Mr.

Espinoza filed a motion to amend under Fed. R. Civ. P. 52(b) and 59(e), which

the district court also denied. Mr. Espinoza now asks us to issue a COA and

review the denial of these motions.

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So, to be precise, the question facing us is whether the district court

correctly held that it had earlier ruled on Mr. Espinoza’s ineffectiveness claims. 

Perhaps mixed up by the two layers of rulings, Mr. Espinoza fails to address this

question in his brief and argues the merits of the underlying ineffectiveness

claims instead. And while we construe the pleadings of pro se litigants liberally,

we cannot invent arguments for reversal on their behalf. In re Antrobus, 563 F.3d

1092, 1099 (10th Cir. 2009). 

Neither would we be able to anyhow. We discern no error in the district

court’s holding and all reasonable jurists would agree that the 2009 ruling had

addressed all of Mr. Espinoza’s claims. For example, Mr. Espinoza’s claim that

counsel was ineffective for failing to consult with him about the possibility of his

testifying received its own section in the original ruling. See 1 R.O.A. 137-39. 

Similarly, in response to Mr. Espinoza’s complaint that his counsel failed to

consult him before foregoing the chance to present an impeachment witness, the

district court had found no prejudice arose from that occurrence. See id. at 143-

44. To the extent Mr. Espinoza seeks to raise any other claim in this appeal, we

do not find them fairly presented in his § 2255 motion. 

This is not a case where a procedural quirk has caused a pro se litigant to

forfeit a meritorious claim. Mr. Espinoza received his chance — in his original

§ 2255 motion and appeal — to persuade the district court and this court of the

arguments in his current brief. We have already once denied a COA on these

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claims, Espinoza, 421 F. App’x at 818-19, and the law of the case doctrine would

bar their reconsideration in any event, see, e.g., In re Antrobus, 563 F.3d at 1098. 

Finally the district court, in its thoughtful opinion, charitably conducted a de novo

review of the record and reaffirmed that Mr. Espinoza’s claims lack merit. 

Espinoza, 2016 WL 3094776, at *2-4.

The request for a COA is denied and this appeal is dismissed. 

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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