FILED

United States Court of Appeals

Tenth Circuit

March 28, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 11-1382

v. (D. Colorado)

SIREINO JOE MARTINEZ,

Defendant - Appellant.

(D.C. Nos. 1:11-CV-00380-WDM

and 1:07-CR-00236-REB-1)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Defendant Sireino Joe Martinez filed a pro se motion for relief under

28 U.S.C. § 2255 in the United States District Court for the District of Colorado,

claiming ineffective assistance of counsel. The district court denied the motion

and declined to grant a certificate of appealability (COA). See 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal the denial of a § 2255 motion). Still

proceeding pro se, he now seeks a COA from this court. We deny the application

for a COA and dismiss the appeal because no reasonable jurist could debate the

district court’s decision. 

I. BACKGROUND

On May 23, 2007, Defendant was charged with one count of being a felon

in possession of a firearm and one count of being a felon in possession of
ammunition. See 18 U.S.C. § 922(g)(1). The government filed an information

alleging that Defendant had four prior convictions for violent felonies that

qualified him for a sentencing enhancement under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e): (1) a 1978 Nevada conviction of second-degree

murder; (2) a 1990 Colorado conviction of menacing; (3) a 1993 Colorado

conviction of menacing with a deadly weapon; and (4) a 1994 Colorado

conviction of third-degree assault. Defendant pleaded guilty to the firearms count

under a plea agreement; and on July 15, 2009, he was sentenced to the mandatory

minimum term of 15 years’ incarceration under the ACCA. Defendant appealed

his sentence, arguing that the menacing convictions did not qualify as violent

felonies under the ACCA. We affirmed the sentence. See United States v.

Martinez, 382 F. App’x 786 (10th Cir. 2010).

On February 14, 2011, Defendant filed his § 2255 motion in district court,

alleging several instances of ineffective assistance of counsel and requesting an

evidentiary hearing. He alleged that his attorney provided ineffective assistance

(1) by failing to object to the admission of conflicting documents related to the

1990 menacing conviction; (2) by failing to conduct an adequate investigation,

which would have revealed that his 1990 menacing conviction was a

misdemeanor; (3) by not objecting to a Colorado court-minutes document

showing that Defendant had pleaded guilty to a charge that actually had been

dismissed; and (4) by failing to investigate his murder conviction and failing to

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object to the admission of the conviction because it was honorably discharged

under Nevada law. In addition, Defendant filed a later pleading asserting that his

attorney had violated a number of rules of professional conduct governing

attorney-client conflicts. The district court denied the motion on July 28, 2011. 

Defendant’s application for a COA from this court raises several arguments

not raised in district court: (1) that his attorney should have objected to the

introduction of his Nevada second-degree-murder conviction, because the Nevada

statute defining his offense did not satisfy the ACCA requirement that the crime

have as an element the use of physical force against another person; (2) that

“[t]he district court Abused its Discretion when it failed to rule on disputed facts

alleged in” his response to the government’s sentencing memorandum submitted

for the sentencing hearing, Aplt. Br. at 15; and (3) that the recent Supreme Court

decision in Bond v. United States, 131 S. Ct. 2355 (2011) (holding that criminal

defendants have standing to challenge their convictions under the Tenth

Amendment), should be applied retroactively to allow him to challenge 18 U.S.C.

§§ 922(g)(1) and 924(e)(1) on Tenth Amendment grounds. Because these

arguments were not raised below, we will not consider them. See Parker v. Scott,

394 F.3d 1302, 1309 n.1 (10th Cir. 2005) (declining to address arguments that

were not raised in district court). For the same reason, we decline to consider

arguments newly raised in Defendant’s motion to supplement his brief in this

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court—namely, his arguments that several of his convictions did not qualify under

the ACCA as convictions of violent felonies.

Of the issues raised in district court, Defendant pursues in this court only

the following ineffective-assistance claims. First, he argues that his attorney

should have objected to the introduction of inconclusive documents regarding his

1990 Colorado menacing conviction. The district court rejected that argument

because he had not shown any prejudice from the introduction of the documents. 

In the § 2255 proceedings the government produced the state judgment of

conviction, which demonstrated that Defendant had been convicted of felony

menacing; and, as noted by this court in Defendant’s direct appeal, Colorado

felony menacing is categorically a violent felony under the ACCA. See Martinez,

382 F. App’x at 788. Second, Defendant argues that his attorney should have

investigated the documents submitted to the district court regarding his menacing

and murder convictions. The court rejected the argument, pointing out that

Defendant could not establish prejudice because he had not provided any specifics

on what had not been investigated or what favorable evidence would have been

discovered in an investigation. Third, Defendant argues that his attorney should

have objected to the introduction of court minutes that mistakenly showed which

of two charges he had pleaded guilty to. The district court rejected the argument

because both charges were for felony menacing, so it did not matter which was

the crime of conviction.

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II. DISCUSSION

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [motion] 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) (internal quotation marks omitted). In other words, the defendant

must show that the district court’s resolution of the constitutional claim was

either “debatable or wrong.” Id. We 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. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). 

Instead, the decision must be based on “an overview of the claims in the habeas

petition and a general assessment of the merits.” Id.

In this case no reasonable jurist could debate the district court’s disposition

of the claims properly raised in this court.

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III. CONCLUSION

We DENY Defendant’s application for a COA and dismiss his appeal. We

GRANT his motion to supplement his brief.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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