UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

RAUL CORTES-PONCE, 

 Defendant - Appellant. 

No. 17-3028 

(D.C. Nos. 5:16-CV-04031-DDC and 

5:13-CR-40078-DDC-1) 

(D. Kan.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. 

_________________________________ 

Raul Cortes-Ponce, a federal prisoner, seeks a certificate of appealability 

(COA) to challenge the denial of his 28 U.S.C. § 2255 habeas corpus Motion to 

Vacate, Set Aside, or Correct Sentence.1

 We must deny him one.2

On June 23, 2014, in accordance with a written plea agreement, Cortes-Ponce 

pleaded guilty to one count of conspiring to possess with intent to distribute 500 

 *

 This order is not binding precedent, except under the doctrines of law of the 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

1

 Cortes-Ponce has already been granted in forma pauperis status for this 

proceeding. 

2

 Cortes-Ponce is proceeding pro se, so we construe his pleadings liberally, but 

we do not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 

2008). 

FILED 

United States Court of Appeals

Tenth Circuit 

September 6, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), 

(b)(1)(A). The presentence investigation report (PSR) found Cortes-Ponce 

responsible for 3.62 kilograms of methamphetamine and 200 kilograms of cocaine. 

Those drug quantities corresponded with a base offense level of 36. After applying a 

two-level enhancement for importing cocaine from Mexico under U.S.S.G. § 

2D1.1(b)(4), a four-level enhancement for being an organizer or leader of criminal 

activity involving five or more participants under U.S.S.G. § 3B1.1(a), and a threelevel reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, the PSR 

assigned a total offense level of 39. Combined with his Criminal History category of 

II, that offense level yielded an advisory guideline sentencing range of 292 to 365 

months of imprisonment. 

Cortes-Ponce initially objected to the PSR’s drug quantity calculations, but 

then withdrew his objection after the parties agreed to jointly recommend a 

substantially below-guideline-range sentence of 192 months. The government filed a 

motion recommending that sentence, and the district court announced its intent to 

accept the recommendation. Later the district court sentenced Cortes-Ponce to 192 

months. We enforced Cortes-Ponce’s appeal waiver against his attempted direct 

appeal. 

In March 2016, Cortes-Ponce filed a § 2255 petition in the District of Kansas. 

He alleged that his counsel had been ineffective in allowing the inclusion of the 

cocaine into his sentencing, because the cocaine-related conduct was not part of the 
3 

same course of conduct. The district court denied the petition without holding a 

hearing and did not issue a COA. Cortes-Ponce appealed. 

To obtain a COA, a petitioner must make “a substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2). A district court must hold an 

evidentiary hearing for a federal prisoner who petitions for post-conviction relief 

unless “the motion and the files and records of the case conclusively show that the 

prisoner is entitled to no relief.” United States v. Galloway, 56 F.3d 1239, 1240 (10th 

Cir. 1995) (en banc) (quoting 28 U.S.C. § 2255(b)). Here, the relevant substantive 

legal test is the high bar of Strickland v. Washington, 466 U.S. 668, 687 (1984). A 

petitioner must show both that his counsel’s performance was deficient and that the 

deficient performance prejudiced him. Id.

We consider only the first of those two prongs and find that Cortes-Ponce 

cannot satisfy it. To satisfy Strickland, a counsel’s performance must be “outside the 

wide range of professionally competent assistance.” Id. at 690. The performance must 

be “not merely wrong,” but so unreasonable as to “bear no relationship to a possible 

defense strategy.” Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000). “Strategic 

choices” that rest on thorough investigation of the facts and the law “are virtually 

unchallengeable.” Strickland, 466 U.S. at 690. 

Cortes-Ponce’s counsel initially made an objection to the drug-quantity 

calculations, but withdrew it when he obtained assurances that his client would likely 

receive 192 months in prison, a sentence 100 months shorter than the bottom of the 

292-to-365-month range that Cortes-Ponce was otherwise facing. Even if we assume 
4 

for the sake of argument that the objection to the inclusion of the cocaine amount 

would have ultimately been successful if not withdrawn, making the objection would 

still have been a risky proposition. The government had another card to play: it could 

have filed a 21 U.S.C. § 851 motion, which would have landed Cortes-Ponce with a 

240-month mandatory-minimum sentence. Because of the plea agreement, the 

government did not do so. In view of all possible sentence enhancements and all 

possible reductions, Cortes-Ponce’s counsel made a strategic choice to plead guilty 

and ensure a below-guideline (and below-potential-mandatory-minimum) sentence, a 

choice that was objectively reasonable and not deficient.3

Cortes-Ponce has not made the required substantial showing for a COA. And 

because the record conclusively shows that Cortes-Ponce is not entitled to relief, the 

district court was correct in finding that an evidentiary hearing was not necessary. 

CONCLUSION

 We deny Cortes-Ponce a COA and a hearing and dismiss this appeal. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 3

 In his brief, Cortes-Ponce makes a number of new arguments and allegations 

that he did not raise in his initial petition at the district court. Failure to raise issues in 

the district court “generally constitutes waiver,” Rios v. Ziglar, 398 F.3d 1201, 1209 

(10th Cir. 2005), and so we will not address them here for the first time on appeal.