Molina-Solorzano v. Martin

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 29, 2020
• Docket: 20-6061
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 29, 2020 TENTH CIRCUIT Christopher M. Wolpert Clerk of Court

CHRISTIAN D. MOLINA- SOLORZANO,

Petitioner - Appellant, No. 20-6061 (D.C. No. 5:20-CV-00001-J) v. (W.D. Okla.)

JIMMY MARTIN, Warden,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

Petitioner, Christian Molina-Solorzano, seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Molina-Solorzano 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). After a bench trial, Molina-Solorzano was convicted of aggravated

trafficking in illegal drugs, in violation of Okla. Stat. tit. 63, § 2-415(C).

Molina-Solorzano filed a direct appeal with the Oklahoma Court of Criminal

Appeals (“OCCA”), arguing, inter alia, that his trial counsel was ineffective for

failing to challenge the lawfulness of the traffic stop and for failing to inform

him of his right under the Vienna Convention on Consular Relations (“VCCR”)

to communicate with the Mexican Consulate. The OCCA affirmed Molina-

Solorzano’s conviction and sentence, analyzing Molina-Solorzano’s ineffective

assistance of counsel claims under the standard set out in Strickland v.

Washington, 466 U.S. 668 (1984), and concluding he failed to demonstrate

counsel’s alleged deficient performance prejudiced him. See Romano v. Gibson,

239 F.3d 1156, 1181 (10th Cir. 2001) (holding that an ineffective assistance of

counsel claim can be resolved on either the performance or prejudice component

of Strickland).

Molina-Solorzano filed the instant § 2254 habeas application on January 2,

2020, raising the two ineffective assistance claims he previously raised in his

direct appeal. Applying the standard set forth in the Antiterrorism and Effective

Death Penalty Act, the district court concluded the OCCA’s adjudication of

Molina-Solorzano’s claims was not contrary to, nor an unreasonable application

-2- of, clearly established federal law. 28 U.S.C. § 2254(d). Accordingly, the

district court denied Molina-Solorzano’s habeas petition.

This court cannot grant Molina-Solorzano a COA unless he can

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. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating

whether Molina-Solorzano has carried his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

Molina-Solorzano is not required to demonstrate that his appeal will succeed to

be entitled to a COA. He must, however, “prove something more than the

absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted).

This court has reviewed Molina-Solorzano’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 and

concludes that Molina-Solorzano is not entitled to a COA. The district court’s

resolution of Molina-Solorzano’s claims is not reasonably subject to debate and

the claims are not adequate to deserve further proceedings. Accordingly, Molina-

-3- Solorzano has not “made a substantial showing of the denial of a constitutional

right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

This court denies Molina-Solorzano’s request for a COA and dismisses

this appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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