Professional Documents
Culture Documents
TENTH CIRCUIT
December 6, 2011
Elisabeth A. Shumaker
Clerk of Court
v.
CARLOS ARMENDARIZ,
DefendantAppellant.
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
324 months imprisonment. This court affirmed his conviction on appeal. United States
v. Armendariz, 349 F. Appx 323 (10th Cir. 2009) (unpublished).
Armendarizs 2255 petition was initially reviewed by a magistrate judge, who
construed the petition as raising two claims: (1) ineffective assistance of trial counsel;
and (2) alleged error in the trial courts replacement of a sworn juror with an alternate.
The magistrate judge recommended that the petition be denied because Armendariz
procedurally defaulted on the juror claim and his pleadings lacked the specificity required
to establish that his counsel was deficient under Strickland v. Washington, 466 U.S. 668
(1984). Despite Armendarizs objections, the district court adopted the magistrate
judges recommendations in full.
In his application for a COA, Armendariz attempts to flesh out his ineffective
assistance of counsel claim with additional facts. He does not address his second claim
concerning the replaced juror.
II
A petitioner must first obtain a COA to appeal the denial of a 2255 petition. 28
U.S.C. 2253(c)(1)(B). We may issue a COA only if the applicant has made a
substantial showing of the denial of a constitutional right, 2253(c)(2), which requires a
petitioner to 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. Slack v.
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See United States v. Garfinkle, 26 F.3d 1030, 1031 (10th Cir. 2001) (arguments first
made in response to magistrates report are waived); Rhine v. Boone, 182 F.3d 1153,
1154 (10th Cir. 1999) (issues cannot be raised for first time on appeal). To the extent that
these submissions address the issue raised in his original petitionthat counsel was
ineffective at the plea stagethese materials also fail to provide the necessary factual
specificity to state a cognizable claim.
III
We DENY a COA and DISMISS the appeal. We GRANT Armendarizs motion
to proceed in forma pauperis.
Carlos F. Lucero
Circuit Judge
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