This order is not binding precedent, except under the doctrines of law of the case, res *

judicata, and collateral estoppel.

F I LED

United States Court of Appeals

Tenth Circuit

December 11, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 06-2147

ANDRES CARMONA-MIRANDA,

Defendant-Appellant.

(D.C. No. CV-05-0484-RB/WDS)

(D.C. No. CR-05-0720-RB)

(D. New Mexico)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

Andres Carmona-Miranda, appearing pro se, seeks a certificate of appealability

(COA) in order to challenge the district court’s order dismissing without prejudice his 28

U.S.C. § 2255 motions to vacate, modify, or set aside his sentence. Because CarmonaMiranda has failed to satisfy the standards for the issuance of a COA, we deny his request

and dismiss the matter.

On April 6, 2005, Carmona-Miranda was indicted on one count of illegal reentry into

the United States following deportation after conviction for an aggravated felony, in violation

of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). While the charge was still pending, Carmona-
2

Miranda filed three motions with the district court: a motion to dismiss the indictment and

two motions for relief pursuant to 28 U.S.C. § 2255. In all three motions, Carmona-Miranda

alleged that he had been improperly deported in absentia on October 3, 2000. On February

2, 2006, following the denial of his motion to dismiss the indictment, Carmona-Miranda

entered a conditional plea of guilty, specifically reserving the right to appeal the district

court’s denial of that motion. On March 10, 2006, prior to sentencing, the magistrate judge

assigned to the case recommended that Carmona-Miranda’s § 2255 motions be dismissed

without prejudice. In doing so, the magistrate judge concluded that the issues asserted in the

§ 2255 motions were identical to the issues raised in Carmona-Miranda’s motion to dismiss

the indictment, and thus could properly be raised on direct appeal by Carmona-Miranda. The

district court subsequently adopted the magistrate judge’s recommendation, dismissed the

§ 2255 motions without prejudice, and denied Carmona-Miranda’s request for a COA.

Carmona-Miranda has now renewed his request for a COA with this court.

Where, as here, a district court denies a § 2255 motion on procedural grounds, “a

COA should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the [motion] states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We conclude that

Carmona-Miranda cannot satisfy this latter requirement. To begin with, Carmona-Miranda

filed his § 2255 motions before he was sentenced by the district court. Thus, CarmonaMiranda failed to satisfy the threshold requirement of § 2255 that he be “in custody under
3

sentence of a court established by Act of Congress . . . .” 28 U.S.C. § 2255. Even ignoring

this problem, Carmona-Miranda failed to establish any “extraordinary circumstances” that

would have justified the district court ruling on the § 2255 motions, rather than requiring

Carmona-Miranda to pursue a direct appeal following sentencing. United States v. Prows,

448 F.3d 1223, 1228 (10th Cir. 2006). Indeed, the precise issues raised in CarmonaMiranda’s § 2255 motions had already been decided by the district court in denying

Carmona-Miranda’s motion to dismiss the indictment. Thus, the proper course, as noted by

the district court, was for Carmona-Miranda to pursue a direct appeal following sentencing.

The request for a COA is DENIED and the matter is DISMISSED. The motion to

proceed in forma pauperis is GRANTED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge