FILED

United States Court of Appeals

Tenth Circuit

November 4, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALFREDO NAVARRO FLORES,

Defendant - Appellant.

No. 13-8023

(D. Wyoming)

(D.C. Nos. 2:12-CV-00080-CAB and

2:09-CR-00135-WFD-4)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

Proceeding pro se, Alfredo Navarro Flores seeks to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. The matter is before this court on Flores’s request for a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). Because Flores has not “made a substantial showing of the

denial of a constitutional right,” this court denies his request for a COA and

dismisses this appeal. Id. § 2253(c)(2).

Flores was indicted for conspiracy to possess with intent to distribute

methamphetamine, distribution of methamphetamine, and two counts of knowing
use of a telephone to facilitate a drug offense. Flores pleaded guilty to the

conspiracy and distribution counts and was sentenced to a mandatory minimum

term of 120 months’ incarceration. On direct appeal, this court rejected Flores’s

assertion he was prejudiced by the government’s failure to notify him of his right

to consult with the Mexican Consulate as required by the Vienna Convention on

Consular Relations. United States v. Navarro-Flores, 421 F. App’x 863, 866

(10th Cir. 2011) (unpublished disposition). 

In his pro se § 2255 motion, Flores raised several claims of ineffective

assistance of trial counsel, including claims counsel (1) failed to argue for a

reduction in his sentence pursuant to the “safety valve” provisions of U.S.S.G.

§ 5C1.2, (2) failed to seek a mitigating-role downward adjustment under U.S.S.G.

§ 3B1.2, and (3) failed to object to drug quantity calculations used to determine

his sentence. In addition to his ineffective assistance claims, Flores also sought

modification of his sentence because he believed it was unreasonably long. 

The claims raised in Flores’s motion were addressed by the district court

which began by correctly noting that to establish the ineffectiveness of his

counsel, Flores must demonstrate both that counsel’s performance was deficient

and that he was prejudiced by the deficient performance. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Applying Strickland to Flores’s

ineffective assistance claims, the court concluded that Flores failed, in each

instance, to demonstrate deficient performance on the part of his counsel. The

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district court then concluded that Flores’s challenge to the reasonableness of his

sentence was procedurally barred. See United States v. Allen, 16 F.3d 377, 378

(10th Cir. 1994) (“A defendant who fails to present an issue on direct appeal is

barred from raising the issue in a § 2255 motion, unless he can show cause for his

procedural default and actual prejudice resulting from the alleged errors, or can

show that a fundamental miscarriage of justice will occur if his claim is not

addressed.”). The court further concluded that, even in the absence of a

procedural bar, the claim had no merit. 

Flores is before this court seeking a COA on two of the issues raised in his

§ 2255 motion: his assertions counsel was ineffective for failing to seek sentence

reductions under the safety valve and minor participant provisions of the

Sentencing Guidelines. To be entitled to a COA, Flores must make “a substantial

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

make the requisite showing, he 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.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003) (quotations omitted). In evaluating whether Flores has satisfied his

burden, this court undertakes “a preliminary, though not definitive, consideration

of the [legal] framework” applicable to each of his claims. Id. at 338. Although

Flores need not demonstrate his appeal will succeed to be entitled to a COA, he

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must “prove something more than the absence of frivolity or the existence of mere

good faith.” Id.

Having undertaken a review of Flores’s application for a COA and

appellate brief, the district court’s order, and the entire record on appeal pursuant

to the framework set out by the Supreme Court in Miller-El, this court concludes

Flores is not entitled to a COA. The district court’s resolution of his § 2255

motion is not reasonably subject to debate and the issues he seeks to raise on

appeal are not adequate to deserve further proceedings. Accordingly, this court

denies Flores’s request for a COA and dismisses this appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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