FILED

United States Court of Appeals

Tenth Circuit

May 24, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 10-1005

v. (D. Colorado)

LUIS ALTAMIRANO-QUINTERO,

Defendant - Appellant.

(D.C. Nos. 1:08-CV-01882-REB and 

1:04-CR-00188-REB-MJW)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Luis Altamirano, appearing pro se, requests a certificate of appealability

(COA) to appeal the district court’s denial of his motion for a writ of habeas

corpus under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to

appeal dismissal of § 2255 motion). Because no reasonable jurist could conclude

that Mr. Altamirano’s § 2255 motion should have been resolved in a different

manner, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny his request for

a COA and dismiss this appeal.

After entering into a plea agreement with the government, Mr. Altamirano

pleaded guilty in the United States District Court for the District of Colorado to

conspiring to possess, with the intent to distribute, 500 grams or more of

methamphetamine. See United States v. Altamirano-Quintero, 511 F.3d 1087,

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1089 (10th Cir. 2007). He was sentenced to the mandatory-minimum 10-year

sentence, and unsuccessfully appealed the sentence. See id. On September 2,

2008, he filed a § 2255 motion raising five claims: (1) that the search of his

person was nonconsensual and violated the Fourth Amendment, thereby tainting

the later search of his vehicle, where the drugs were found; (2) that his second

trial attorney (Harvey Steinberg) was ineffective in investigating the

circumstances surrounding the searches, preparing the motion to suppress, and

representing him at the suppression hearing; (3) that his third trial attorney (Mark

Rubinstein) was ineffective in failing to assert the above Fourth Amendment and

ineffective-assistance arguments in support of his motion to withdraw his guilty

plea; (4) that his fourth attorney (Boston Stanton) was ineffective in repeating

Mr. Rubenstein’s failure to raise proper arguments in support of his motion to

withdraw his plea, submitting to the court a deficient motion to withdraw his plea,

and failing to request a downward sentencing departure based on his status as a

deportable alien; and (5) that his appellate attorney (Paul Schwartz) was

ineffective in not having raised on direct appeal his claim that his prior counsel

provided ineffective assistance. 

The magistrate judge issued a thorough recommendation that the motion be

dismissed. On December 18, 2009, the district court overruled Mr. Altamirano’s

objections and adopted the recommendation. It also denied Mr. Altamirano a

COA. Of particular relevance to the matter before us, the magistrate judge’s

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report noted that before Mr. Altamirano pleaded guilty, the district court had

found that he had voluntarily consented to the searches of his person, his motel

room, and his vehicle. And the district court pointed out that an attorney is not

ineffective for failing to pursue an invalid argument.

In this court Mr. Altamirano argues (1) that his second attorney was

ineffective; (2) that he did not consent to the search of his person, thereby

tainting the later searches of his car and room; (3) that the canine search of his

vehicle’s interior could not be conducted without his specific consent to that

search; and (4) that the district court improperly failed to consider an affidavit

from his codefendant, submitted before Mr. Altamirano’s sentencing, regarding

Mr. Altamirano’s lack of consent. 

“A certificate of appealability may issue . . . only if the applicant [for a

COA] has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional

claims on the merits,” the prisoner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. If the motion was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

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

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the district court is correct to invoke it to dispose of the case, a reasonable jurist

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

or that the [movant] should be allowed to proceed further.” Id.

In assessing whether to grant a COA, we do not consider Mr. Altamirano’s

complaint that the district court failed to address his codefendant’s affidavit,

which had been submitted before sentencing. Mr. Altamirano did not rely on that

affidavit in his district-court § 2255 proceedings, and we will not consider an

issue not raised until appeal. See Pierce v. Shorty Small’s of Branson Inc., 137

F.3d 1190, 1192 (10th Cir. 1998). As for the remaining issues, the magistrate

judge’s recommendation and the district court’s order clearly establish the lack of

merit of Mr. Altamirano’s arguments. No reasonable jurist could debate that the

issues should have been resolved differently.

Accordingly, we DENY a COA and DISMISS the appeal. We GRANT

Mr. Altamirano’s motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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