* This order and judgment is not binding precedent, except under the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. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 27 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELVIS ROBERT SEDILLO,

Defendant-Appellant.

No. 00-2258

(D.C. No. CR-95-330-JC)

(D. N.M.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of

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

therefore ordered submitted without oral argument.
-2-

Defendant Elvis Robert Sedillo seeks a certificate of appealability (COA)

in order to appeal from the district court’s order denying relief in his motion filed

under 28 U.S.C. § 2255 . We deny Sedillo’s application and dismiss the appeal.

To be entitled to a COA, Sedillo must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this

showing by establishing 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 , 120 S. Ct. 1595, 1603-04 (2000) (quotation

omitted). We will grant relief if we determine that “the judgment was rendered

without jurisdiction, or that the sentence imposed was not authorized by law or

otherwise open to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.” 28 U.S.C. § 2255.

In 1995, Sedillo and his co-defendant were charged with nine counts of

violating various federal statutes arising from the carjacking and shooting death

of the driver of the car. On the day set for trial, Sedillo pled guilty to one count

of the indictment, violation of 18 U.S.C. § 2119(3), carjacking resulting in death. 

At sentencing he moved to withdraw his plea. The motion was denied and he was

sentenced to life. We affirmed the district court’s decision on direct appeal.
-3-

Sedillo then filed this § 2255 motion seeking resentencing on the basis of

ineffective assistance of counsel in that counsel did not ensure that he understood

that the factual foundation he offered at the plea hearing was not an acceptance of

responsibility. He asserted that appointed counsel should have helped him to

prepare a more comprehensive statement for the pre-sentence investigation report. 

The district court granted the motion and resentenced him to life.

Sedillo now appeals the district court’s reimposition of the life sentence.

He argues that the court was biased against him and he should be resentenced by

an impartial judge. Sedillo asserts that the sentencing judge evinced his prejudice

by rejecting his statement of acceptance of responsibility, by verbally attacking

him at sentencing, and by denying him a family contact visit.

The denial of an impartial judge is a structural error which can never be

harmless. Juarez v. Minn. , 217 F.3d 1014, 1017 (8th Cir. 2000); Tumey v. Ohio ,

273 U.S. 510 (1927). We have reviewed the district court proceedings in light of

the parties’ submissions to this court and the record on appeal. Sedillo has failed

to show bias which would warrant resentencing before another judge. See, e.g. ,

Liteky v. United States , 510 U.S. 540, 555 (1994) (judicial rulings “almost never”

are valid grounds for bias motion; further, judicial opinions based on facts

introduced or events occurring during course of proceedings are not basis for bias

motion “unless they display a deep-seated favoritism or antagonism that would
-4-

make fair judgment impossible”). Sedillo has failed to make a “substantial

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

Reasonable jurists could not debate whether his § 2255 “petition should have

been resolved in a different manner” or whether “the issues presented were

adequate to deserve encouragement to proceed further.” Slack , 120 S. Ct.

at 1603-04 (quotation omitted).

We admonish counsel to be cognizant of our local rules. Sedillo did not

attach either the district court’s judgment or the relevant transcript to his brief. 

See 10th Cir. R. 28.2(A). Further, the government did not correct this omission. 

See id. 28.2(B).

We DENY Sedillo’s application for a COA and DISMISS this appeal.

Entered for the Court

Robert H. Henry

Circuit Judge