FILED

United States Court of Appeals

Tenth Circuit

June 11, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 13-4020

v. (D. Utah)

MARTIN R. VANDEMERWE,

Defendant - Appellant.

(D.C. Nos. 2:11-CV-01187-DB and

2:07-CR-00111-DB-1)

ORDER DENYING

CERTIFICATE OF APPEALABILITY*

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Martin R. VanDeMerwe, proceeding pro se, seeks a certificate of

appealability (“COA”) to enable him to appeal the dismissal of his 28 U.S.C.

*

This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be

cited under the terms and conditions of 10th Cir. R. 32.1.
§ 2255 motion. For the following reasons, we deny him a COA and dismiss this

matter.

BACKGROUND

Mr. VanDeMerwe was convicted by a jury of one count of possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). 

After the jury verdict, but before sentencing, Mr. VanDeMerwe’s counsel moved

the court to evaluate Mr. VanDeMerwe’s competency. The district court granted

the motion and subsequently amended the motion to include a psychological

examination. Mr. VanDeMerwe was found to be competent.

Mr. VanDeMerwe was then sentenced to twenty years’ imprisonment. He 

appealed his conviction, which was affirmed by our court. United States v.

VanDeMerwe, 405 Fed. Appx. 344 (10th Cir. 2010).1 Mr. VanDeMerwe then

filed the instant 28 U.S.C. § 2255 motion, claiming counsel was ineffective in a

variety of ways. In particular, as recited by the district court, Mr. VanDeMerwe

alleged his:

trial counsel was constitutionally ineffective for the following

reasons: (1) counsel never quizzed Vandemerwe regarding his

ability to comprehend the charges or their possible consequences; (2)

counsel failed to make objections regarding Vandemerwe’s alleged

disabilities; (3) counsel referred to Vandemerwe by the wrong name

1

The facts of this case are set forth in detail in our opinion affirming

Mr. VanDeMerwe’s conviction, and are repeated here only as necessary to

address the issues relevant to his COA application. 

-2-
on at least one occasion; (4) an investigative report shows counsel’s

lack of preparedness and communication with Vandemerwe before

trial; (5) a newly discovered document shows that Mickelson [one of

Mr. VanDeMerwe’s drug buyers] committed perjury and his motive

behind it; and (6) a supplemental report shows that key evidence

used to obtain the search warrant [for Mr. VanDeMerwe’s apartment]

was destroyed.

Order at 4-5.

The district court rejected each of these claims of ineffectiveness, finding

that counsel’s performance met the objective standard of reasonable performance

under the familiar ineffective assistance of counsel standard in Strickland v.

Washington, 466 U.S. 668 (1984). The district court also held that none of the

claims satisfied the prejudice prong of Strickland, as none of the claimed attorney

deficiencies “had any conceivable effect on the outcome of the proceeding.” 

Order at 7 (citing Strickland, 446 U.S. at 693). The district court also determined

that Mr. VanDeMerwe had waived various unspecified arguments because he

raised them for the first time in his reply brief.

The district court subsequently denied Mr. VanDeMerwe’s motion for

reconsideration, noting that “even if the court had thoroughly considered the

newly-framed arguments in the Reply memoranda, it would not have altered the

court’s decision.” Order Denying Motions at 2. It also denied his request for a

COA, finding that “reasonable jurists could not debate whether the petition should

have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Id. (citing Miller-El v.

-3-
Cockrell, 537 U.S. 322, 336 (2003)). Mr. VanDeMerwe has renewed his request

for a COA, this time with our court.

DISCUSSION

A COA is a jurisdictional prerequisite to this court’s review of a § 2255

motion. 28 U.S.C. § 2253(c)(1)(B); see Allen v. Zavaras, 568 F.3d 1197, 1199

(10th Cir. 2009) (citing Miller-El, 537 U.S. at 336). “We will issue a COA only if

the applicant has made a substantial showing of the denial of a constitutional

right.” Allen, 568 F.3d at 1199 (quoting 28 U.S.C. § 2253(c)(2)). In order to

make such a showing, a prisoner 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) (citation and internal quotation marks omitted).

Where the district court denies a motion on procedural grounds, as well as

on the merits of the underlying constitutional claims, the movant must show that

reasonable jurists would find debatable both (1) whether the motion states a valid

claim of the denial of a constitutional right, and (2) whether the district court was

correct in its procedural ruling. “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of [an issue], a reasonable jurist

could not conclude either that the district court erred in dismissing the [issue] or

-4-
that the [movant] should be allowed to proceed further. In such a circumstance,

no appeal would be warranted.” Id.

Furthermore, “[w]e recognize that in determining whether to issue a COA,

a ‘full consideration of the factual or legal bases adduced in support of the

claims’ is not required.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir.

2012) (quoting Miller-El, 537 U.S. at 336). Additionally, bearing in mind “the

standard of review governing a request for a [COA], . . . ‘the district court’s legal

rulings on a § 2255 motion [are reviewed] de novo and its findings of fact for

clear error.’” United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000)

(quoting United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998)).

In this case, the district court denied Mr. VanDeMerwe’s § 2255 motion on

both procedural grounds and on the merits. It refused to consider certain issues,

as it viewed them as waived because they were raised for the first time in

Mr. VanDeMerwe’s reply brief. That was accordingly a procedural

determination. His other claims, all relating to ineffective assistance of counsel,

were addressed and rejected on their merits.

Mr. VanDeMerwe renews the ineffectiveness claims in his request for a

COA from this court. He also, however, adds two claims not raised below. We

consider whether any of them meet the standard for issuance of a COA.

-5-
I. Ineffective Assistance of Counsel

“To succeed on an ineffectiveness-of-counsel claim, Defendant must make

two showings: ‘that counsel’s representation fell below an objective standard of

reasonableness,’ rendering his or her performance deficient; and that the

deficiency prejudiced the defense.” Davis v. Workman, 695 F.3d 1060, 1071

(10th Cir. 2012) (quoting Strickland, 466 U.S. at 687-88 (1984)), cert. denied,

133 S. Ct. 1845 (2013). For Mr. VanDeMerwe to prove that he was prejudiced by

his counsels’ claimed ineffectiveness,2

 he must demonstrate that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. “These two prongs may be addressed in any order, and failure to

satisfy either is dispositive.” Hooks v. Workman, 689 F.3d 1148, 1186 (10th Cir.

2012) (citation omitted). We note that an analysis of an attorney’s effectiveness

begins with the “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

While it is not completely clear, Mr. VanDeMerwe appears to argue in his

application for a COA that nobody (neither the court, the prosecutor nor defense

counsel) properly or fully read the competency evaluation report regarding

2

Mr. VanDeMerwe was represented by at least three attorneys during his

trial and sentencing. He claims each provided ineffective assistance in different

ways, although his arguments lack precision. 

-6-
Mr. VanDeMerwe, which was prepared by Dr. Alicia M. Gilbert. He argues that,

as a result, he (Mr. VanDeMerwe) was unable to assist in his own defense. To

the extent this is the same argument he made to the district court below,3

 we find

that the district court’s conclusion that there was no violation of the Strickland

performance standard resolves it, as the district court’s analysis is not debatable

among reasonable jurists. Any other claims cannot be raised for the first time on

appeal. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).

The “second issue” Mr. VanDeMerwe identifies in his COA application is

another claim of ineffective assistance of counsel based upon defense counsel

Fred Metos’s performance at trial. Among the claimed failings by Mr. Metos was

his “neglecting to take action regarding[] deficits in petitioner’s ability to fully

comprehend and understand his situation,” including Mr. VanDeMerwe’s 

apparent rejection of a ten-year imprisonment plea agreement. Appellant’s

Opening Br. at 7. While Mr. VanDeMerwe alleges various other failings by

defense counsel, we fully agree with the district court’s analysis of this entire

argument:

[Mr. VanDeMerwe] fails to describe when counsel’s alleged failures

occurred. As referenced above, counsel moved the court to evaluate

3

Mr. VanDeMerwe argued to the district court that his counsel was

ineffective because counsel never quizzed Mr. VanDeMerwe regarding his ability

to comprehend the charges and/or their possible consequences and because

counsel failed to make objections regarding Mr. VanDeMerwe’s claimed

disabilities. This argument clearly involves, to some extent, the competency

evaluation and his counsel’s use of it.

-7-
Vandemerwe’s competency and mental condition after Vandemerwe

was convicted. The court granted the motion and Vandemerwe was

evaluated and found to be competent. Accordingly, Vandemerwe’s

claims fail the performance prong of Strickland because there is

nothing to suggest that counsel’s performance fell below an objective

standard of reasonableness.

Order at 5.

With respect to Mr. VanDeMerwe’s allegations of ineffectiveness in

connection with the testimony of Mr. Mickelson, trial counsel’s degree of

preparation for trial and his treatment of evidence, we conclude that the district

court’s Strickland analysis of these issues is unassailable by reasonable jurists. 

To the extent Mr. VanDeMerwe raises issues and allegations not argued before

the district court, we follow our general rule of declining to address such issues

raised for the first time on appeal (or attempted appeal) from a lower court’s

order.

Furthermore, with regard to the district court’s analysis and application of

the Strickland prejudice prong, we find that its analysis is completely proper and

not subject to debate by reasonable jurists under applicable authorities. We

similarly conclude that the district court’s procedural rulings regarding issues

raised for the first time in Mr. VanDeMerwe’s Reply brief are correct. No

reasonable jurist could debate the propriety of those rulings.

-8-
II. Police Misconduct and Judicial Bias

Mr. VanDeMerwe makes two final arguments in support of his request for a

COA: (1) “the police, specifically Officer Marcelo Rapela, have engaged in

activities related to this case that have violated petitioner’s civil and due process

rights;” and (2) judicial bias, in that the trial judge “clearly saw the petitioner as a

nuisance, and stated so at sentencing.” Appellant’s Opening Br. at 13, 16. He did

not make these arguments before the district court. They may not, therefore, form

the basis of a request for a COA.

CONCLUSION

For the foregoing reasons, Mr. VanDeMerwe’s request for a COA is

DENIED and this matter is DISMISSED. We DENY his request for leave to

proceed on appeal in forma pauperis.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

-9-