United States v. Madrigal

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 25, 2000
• Docket: 99-4085
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 25 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4085 (D.C. No. 96-CV-998) JORGE ZAMUDIO MADRIGAL, (D. Utah)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before KELLY , HENRY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

In 1993, Jorge Zamudio Madrigal was convicted of possession of a

controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a),

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. and he was sentenced, inter alia, to a prison term of 121 months, which he is

currently serving. His conviction was affirmed on appeal. See United States v.

Madrigal , 43 F.3d 1367 (10th Cir. 1994). On November 25, 1996, he filed a

motion pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence on

the basis that he was denied his right to the effective assistance of counsel at trial.

The government responded, and the case was referred to a magistrate judge, who

issued a report recommending that the motion be denied. Finding Madrigal’s

objections to the magistrate judge’s report unpersuasive, the district court adopted

the report and denied the motion. Madrigal now requests a certificate of

appealability under 28 U.S.C. § 2253 so that he may appeal the district court’s

decision.

Madrigal requests a certificate of appealability on the issue of ineffective

assistance of counsel. He also contends that the district court denied him his due

process rights because it failed to hold an evidentiary hearing. Madrigal has not

presented any argument in support of his claims in his application for a certificate

of appealability or opening brief. Instead, he simply conclusorily contends that

his counsel was ineffective and he was improperly denied an evidentiary hearing

and attempts to incorporate by reference the arguments he made in the district

court. That is not proper appellate procedure; we do not allow district court

arguments to be incorporated by reference. See Gaines-Tabb v. ICI Explosives,

-2- USA, Inc. , 160 F.3d 613, 623-24 (10th Cir. 1998). In any event, we have

considered the arguments he raised in the district court and conclude that he has

not made the required “substantial showing of the denial of a constitutional

right.” § 2253(c)(2).

The application for a certificate of appealability is DENIED, and the appeal

is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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