United States v. Alas

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 3, 2023
• Docket: 22-7049
• Status: Unpublished

Opinion

Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 3, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-7049 (D.C. Nos. 6:19-CV-00219-RAW & NELSON ALAS, 6:17-CR-00049-RAW-2) (E.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

This matter is before the court on Nelson Alas’s pro se request for a

certificate of appealability (“COA”). He seeks a COA so he can appeal the

denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B)

(providing no appeal is allowed from a “final order in a proceeding under

section 2255” unless the movant first obtains a COA). Because he has not

“made a substantial showing of the denial of a constitutional right,” id.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 2

§ 2253(c)(2), this court denies his request for a COA and dismisses this

appeal. 1

Alas pleaded guilty to a single count of conspiracy to possess with

intent to distribute large quantities of methamphetamine. See 21 U.S.C.

§§ 841, 846. In exchange for Alas’s guilty plea, the government dismissed

numerous additional substantive counts and a count seeking forfeiture of

assets derived from the conspiracy. The district court imposed a sentence of

135 months’ imprisonment, a term at the bottom of the advisory range set

out in the Sentencing Guidelines. Thereafter, Alas filed the instant § 2255

motion, asserting the government breached the plea agreement by failing to

adequately make the district court aware, by the time of sentencing, of any

assistance Alas provided “in any ongoing investigation into criminal activity

within the Eastern District of Oklahoma and elsewhere, or in the prosecution

1 The government has filed a motion to dismiss this appeal as untimely. As the basis for that motion, the government asserts Alas was obligated to file his notice of appeal within fourteen days of the entry of the judgment. See Gov’t Motion at 3 (citing Fed. R. App. P. 4(b)(1)(a)(i)). In a proceeding under § 2255, however, the notice of appeal must be filed within sixty days of entry of the judgment. 28 U.S.C. § 2107(b)(1); Fed. R. App. P. 4(a)(1)(B). This is true because proceedings under § 2255 are civil in nature and involve the United States and/or one its officers or employees sued in an official capacity. United States v. Williams, 790 F.3d 1059, 1077 n. 14 (10th Cir. 2015); United States v. Cruz, 774 F.3d 1278, 1284 (10th Cir. 2014); United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). Alas filed his notice of appeal within the sixty-day window and his appeal is, therefore, timely. Accordingly, the government’s motion to dismiss the appeal as untimely is DENIED. 2 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 3

of another person who has committed a criminal offense.” He also raised

two overarching claims of ineffective assistance of counsel.

The district court denied Alas’s request for collateral relief. As to

Alas’s claim the government breached the plea agreement, the district court

found it had, in fact, been made aware of Alas’s cooperation and that the

matter had been vetted at the sentencing hearing. Furthermore, the district

court concluded it was well-aware of its authority to vary or depart sua

sponte based on any such cooperation and that the record demonstrated Alas

was not entitled to such relief. As to Alas’s claims of ineffective assistance,

the district court concluded they were inconsistent with facts and the record

and, more importantly, at odds with “solemn declarations” Alas made “in

open court” during the plea colloquy. See Blackledge v. Allison, 431 U.S.

63, 74 (1977) (“Solemn declarations in open court carry a strong

presumption of verity. The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are

contentions that in the face of the record are wholly incredible.”).

Alas seeks a COA so he can appeal the district court’s denial of his

§ 2255 motion. The granting of a COA is a jurisdictional prerequisite to an

appeal from the denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S.

322, 335–36 (2003). To be entitled to a COA, Alas must make “a

3 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 4

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make the requisite showing, he must demonstrate

“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, 537 U.S. at 336 (quotations omitted). In evaluating whether he

has satisfied this burden, we undertake “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338. Although he need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the

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

omitted).

Having undertaken a review of Alas’s combined appellate brief and

request for COA, the district court’s order, and the entire record before this

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

we conclude Alas is not entitled to a COA. In so concluding, this court has

nothing to add to the district court’s thorough order denying Alas’s § 2255

4 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 5

motion. Accordingly, Alas’s request for a COA is DENIED and this appeal

is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge