UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MATTHEW DEWAYNE JARAMILLO, Defendant - Appellant. No. 16-1491 (D.C. Nos. 1:15-CV-01886-REB & 1:12-CR-00210-REB-1) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before PHILLIPS , McKAY , and McHUGH , Circuit Judges.

________________ _________________ Matthew Dewayne Jaramillo, a f ederal prisoner, seeks a certifi cate of appealability (COA) under 28 U.S.C. § 2253(c)(1 ) to challenge the district co urt’s dismissal of his 28 U.S.C. § 2255 petition. H e also moves to proceed in forma pauperis (IFP). We decline to issue him a COA, deny his IFP mo tion, and accordingly now dismi ss the appeal.
BACKGROUND A federal grand jury indicted Jaramillo, an enrolled member of the Ute Mountain Ute Indian Tribe, for several fede ral offenses after he shot Wi lson Jones on the Ute Reservation in Southwest Color ado while high on methamphetamine . At trial, Jaramillo’s defense counsel mounted an inno cence defense and didn’t raise a voluntary-intoxication

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collatera l estoppel. It may be cited, h owever, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32. 1. FILED United States Court of Appeals Tenth Circuit 

### July 18, 2018
Elisabeth A. Shumaker Clerk of Court2 defense. On May 17, 2013, a jury found Jaramillo guilty on five federal offenses: (1) assault with inten t to commit murder, i n violation of 18 U. S.C. §§ 113(a)(1) and 1153; (2) assault with a dangerous weapon with intent to do bod ily harm, in violation of 18 U.S.C. §§ 113(a)(3) and 1153; (3) assault resulting in serio us bodily injury, in violation of 18 U.S. C. §§ 113(a)(6) and 11 53; (4) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1); and (5) using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii ). Ten minutes before the sentencing hearing began, Jaramil lo fired his retained counsel. At the hearing, Jaramillo filed a “Motion to Vacate Sentence,” alleging ineffective assis tance of trial counsel, and then proceeded pro se at his sentencing. R. vol. I at 314. The district court denied his motion and sentenced him to 660 months of imprisonment. Jaramillo filed a direct appeal, a lleging only ineffective assi stance of counsel.
United States v. Jaramillo , 568 F. App’x 613, 614 (10th Cir. 2014). B ecause Jaramillo didn’t challenge his sentence, this court affirmed it. Id. at 615. But this court did remand with instructions that the dist rict court vacate its ruling on the merits of Jaramillo’s ineffective-assistance-of-trial counsel claim so that he wouldn ’t be prejudiced in a collateral proceeding. Id. On August 31, 2015, Jaramillo filed a § 2255 motion to vacate or set aside his sentence alleging ineffective a ssistance of counsel, complainin g that his trial counsel had failed to raise a voluntary-intoxication defense. 1 Though he apparently attempted to make

1 Jaramillo also asserts that h is trial counsel was ineffective “for failing to request a jury instruction rega rding voluntary intoxication as a defense to counts 1, 23 other claims, the district cour t couldn’t understand what they might be. The district court entered an order directing Jaramillo to file an amended § 2255 motion within thirty days clarifying the amorphous claims, or risk having the court consi der only his ineffectiveassistance claim. On September 18, 2015, the court received bac k its order, marked undeliverable. In a later order, t he district court determined that because Jaramillo failed to notify the court of his cha nge of address in compliance with Local Rule of Practice 5(c) for the United States Distr ict Court for the District of C olorado, it would consider only Jaramillo’s ineffective-assi stance claim. It then directed the United States Attorney for the District of Colorado to file an answer to Jaramillo’s m otion. After the government responded, t he district court denied Jaram illo’s § 2255 motion on grounds t hat Jaramillo couldn’t sh ow that his counsel had performed deficiently. Specifically, the cou rt determined that trial coun sel’s decision to pursue an innocence defense, which applied to all of Jaramillo’s charges, rather than a voluntaryintoxication defense, which only applied to the two charged spe cific-intent crimes, was a reasonable trial strategy. The dis trict court also “certifie[d] that any appeal” from its order “would not be taken in good faith ” and denied Jaramillo’s IFP m otion. R. at 565 (citing Coppedge v. United States , 369 U.S. 438 (1962)). On December 19, 2016, Jaramillo filed a pro se notic e of appeal, but failed to sign it. Oddly, the notice did bear t he signature of an attorney not admitted to practice in the

and 7.” R. vol. I at 496. Though this failure would certainly m atter if his trial counsel had asserted the defense in so me fashion, it doesn’t matter onc e counsel decided against that defense. After all, one would never submit an inst ruction for a defense not made.4 United States District Court for t he District of Colorado. The clerk of court for the United States Court of Appeals for the T enth Circuit then instructed J aramillo that he needed to sign his notice of appeal. On Janu ary 27, 2017, Jaramillo did a s requested, furnishing a new notice of appeal bearing his signature.
DISCUSSION At the outset, the clerk of cour t referred to us the question of the adequacy of Jaramillo’s notice of appeal, w hich Jaramillo had initially fai led to sign, but soon corrected. A pro se litigant’s f ailure to sign a notice of appe al is a curable, nonjurisdictional defect. Becker v. Montgomery , 532 U.S. 757, 760 (2001). Jaramillo timely complied with this require ment when reminded to do so, s o we find his notice of appeal adequate. Next, before he may appeal, Jar amillo must obtain a COA. 28 U. S.C. § 2253(c)(1). To obtain a COA, a petitioner mu st make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant must demonstrate ‘t hat reasonable jurists could de bate whether . . . the petition should have been resolved in a different manner or tha t the issues presented were adequate to deserve encour agement to proceed further.’” Allen v. Zavaras , 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). Here, the relevant legal ques tion is whether Jaramillo receive d ineffective assistance of counsel unde r the standard set forth in Strickland v. Washington , 466 U.S. 668, 688, 692 (1984), based on hi s counsel’s not mounting a vol untary-intoxication5 defense. To prevail, Jaramillo n eeded to show (1) that his “cou nsel’s representation fell below an objective sta ndard of reasonableness,” Strickland , 466 U.S. at 688, and (2) that his counsel’s deficient performance prejudiced him, id. at 692. If a movant fails to satisfy either prong, his ineffectiv e assistance claim fails. Id. at 697. Voluntary intoxication is a defen se to crimes requiring proof of specific intent, not those requiring proof of only general intent. United States v. Williams , 403 F.3d 1188, 1194 (10th Cir. 2005) (quoting United States v. Klein , 13 F.3d 1182, 1183 (8th Cir. 1994)). Only two of Jaramillo’s cha rges—assault with intent to commit murder and assault with a dangerous weapo n—required specific intent. Compare United States v. Cooper , 812 F.2d 1283, 1284 (10th Ci r. 1987) (recognizing that assaul t with intent to commit murder is a specific-intent crime), and United States v. Waupekenay , 16 F.3d 418, 1994 WL 38673, at *3 (10th Cir. Feb. 7, 1994) (table) (rec ognizing that assault with a dangerous weapon is a specific-intent crime), with United States v. Benally , 146 F.3d 1232, 1237 (10th Cir. 1998) (recogni zing that assault resulting in serious bodily injury is a general-intent crime), Williams , 403 F.3d at 1194 (recogniz ing that felon in possession of a firearm is a general-intent crime), and Dean v. United States , 556 U.S. 568, 572 (2009) (holding that 18 U.S.C. § 924(c)(1)(A)(iii) doesn’t requ ire separate proof of intent). On the other hand, trial couns el’s chosen innocence defense ap plied to all of Jaramillo’s charges. And “[w]he re it is shown that a particular decision was, in fact, an adequately informed strategic c hoice, the presumption that the attorney’s decision was objectively reasonable becomes ‘virtually unchallengeable.’” United States v. Nguyen ,6 413 F.3d 1170, 1181 ( 10th Cir. 2005) (quoting Bullock v. Carver , 297 F.3d 1036, 1047 (10th Cir. 2002)). So the district court’s decision isn’t debat able and we accordingly deny Jaramillo a COA. 2 Like the district court, we c onclude that Jaramillo’s appeal i s frivolous. McIntosh
v. United States Parole Comm’n , 115 F.3d 809, 812–13 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991)). We deny his IFP motion

.

2 Jaramillo urges us to find that the distr ict court “abused its discretion,” Appellant’s Opening Br. at 11, and violated Jaramillo’s constit utional due process rights “when it denied his pro se motion pursuant to 28 U. S.C. § 2255, without appointing counsel or liberally a pplying local and procedural r ules,” id. at 2. But the district court construed Jaramillo ’s pleadings lib erally, R. vo l. I at 557 n.2, gave him a second chance to clarify his c laims that didn’t assert ineffe ctive assistance of counsel, id. at 524–26, and evaluated his in effective-assistance-of-counsel claim, id. at 560. Jaramillo provides no cas e law holding that enforcing a local rule that requires litigants to notify the court of a change of address w ithin five days amounts to a constitutional due process violation. See Appellant’s Opening Br. at 9–11. Jaramillo then argues that, in t he alternative, we should rever se the district court’s denial of his § 2255 motion and re mand it to the district court with instructions to appoint him counsel. See id. at 11. He supports his argument by citing United States v. Leopard , 170 F.3d 1013, 1015 (10th Cir. 1999). Id. at 11. In that case, this court vacated a district court’s deni al of a prisoner’s § 2255 motion and remanded with instructions to appoint counsel b ecause the district court had ordered an evidentiary hearing. Leopard , 170 F.3d at 1015. And “[i]f an evidentiary hearing is require d, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A[b].” Id. (quoting Swazo v. Wyoming Dep’t of Corr. , 23 F.3d 332, 333 (10th Cir. 1994 )) (alterations in original). H ere, the district court didn’t order an evidentiary hea ring, and Jaramillo hasn’t made an argument as to why the district court would be sta tutorily compelled to appoint hi m counsel. So we decline to remand this issue.7 CONCLUSION For these reasons, we deny Jaramill o a COA and dismiss this app eal. We also deny his IFP motion.

Entered for the Court

Gregory A. Phillips Circuit Judge