United States v. Martinez

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 5, 2026
• Docket: 25-1465
• Status: Unpublished

Opinion

Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 5, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-1465 (D.C. Nos. 1:24-CV-00346-DDD & DOMINGO MARTINEZ, JR., 1:19-CR-00277-DDD-1) (D. Colo.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

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

Domingo Martinez Jr., a federal prisoner proceeding pro se, 1 seeks a certificate of

appealability (“COA”) granting him permission to appeal the denial of his motion to

vacate his sentence under 28 U.S.C. § 2255. Exercising jurisdiction under 28 U.S.C.

§ 1291, we deny his request for a COA and dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Mr. Martinez appears in these proceedings without counsel, we construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). But we stop short of acting as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 2

I. BACKGROUND

After attempting to sell 443.3 grams of methamphetamine to a confidential

informant, Mr. Martinez was convicted by jury of one count of possession with intent to

distribute more than fifty grams of methamphetamine. The district court sentenced him to

144 months’ imprisonment followed by five years of supervised release. This court

affirmed his conviction on direct appeal. See United States v. Martinez, 88 F.4th 1310

(10th Cir. 2023).

Mr. Martinez filed a motion to vacate his sentence under 28 U.S.C. § 2255,

alleging several claims of ineffective assistance of counsel. The district court denied the

motion and, in the same order, denied a COA. Mr. Martinez now renews his request for a

COA from this court so that he may appeal the district court’s denial of his § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to the court of appeals

from . . . the final order in a proceeding under section 2255.”).

II. DISCUSSION

We may issue a COA only if the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

Mr. Martinez must 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) (internal quotation marks omitted).

2 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 3

A. Ineffective Assistance of Counsel Claims

In his request for a COA, Mr. Martinez argues four instances of ineffective

assistance of counsel deprived him of a constitutional right. We review claims of

ineffective assistance of counsel under the familiar two-pronged standard established in

Strickland v. Washington, 466 U.S. 668 (1984). To establish constitutionally ineffective

assistance of counsel under this standard, Mr. Martinez must show both (1) that his

“counsel’s representation fell below an objective standard of reasonableness” and

(2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694.

“We need not analyze both the performance and prejudice prongs of the Strickland test if

[Mr. Martinez] fails to make a sufficient showing of one.” United States v. Hollis, 552

F.3d 1191, 1194 (10th Cir. 2009) (internal quotation marks omitted). Applying these

demanding standards, we conclude the district court correctly determined that

Mr. Martinez had failed to show that his counsel’s alleged deficiencies prejudiced him.

First, Mr. Martinez argues that his trial counsel performed deficiently by not

challenging the admission of expert testimony from the Government witness

Detective Brian Jeffers. Detective Jeffers, a law enforcement officer with over two

decades of experience in drug trafficking, testified as an expert witness that the quantity

of drugs, scales and baggies, and shrine to Santa Muerte found in Mr. Martinez’s home

were all consistent with someone involved in drug trafficking. See Martinez, 88 F.4th at

1312. Mr. Martinez claims that his trial counsel performed ineffectively by failing to

request a hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

3 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 4

(1993), to challenge Detective Jeffers’s qualifications as an expert and by failing to object

to his testimony about the Santa Muerte evidence. Mr. Martinez contends that counsel’s

alleged deficiencies caused him to face plain-error review instead of de novo review

when he challenged the admission of the Santa Muerte evidence on direct appeal. He

asserts that, had he received de novo review, this court would have found

Detective Jeffers’s Santa Muerte testimony inadmissible, just as it did in United States v.

Medina-Copete, 757 F.3d 1092 (10th Cir. 2014).

The district court rejected Mr. Martinez’s argument on the basis that he failed to

establish a reasonable probability that the result of trial would have been different but for

counsel’s alleged deficient performance. The district court reasoned that, on direct

appeal, the Tenth Circuit found “no error, plain or otherwise, in the admission of [the

Santa Muerte] testimony.” ROA at 101 (quoting Martinez, 88 F.4th at 1314). Thus, the

district court concluded that Mr. Martinez did not make a sufficient showing of prejudice

because “his conviction would have been upheld even under a de novo standard.” Id.

at 102. Mr. Martinez now argues that the district court applied the incorrect standard of

review in analyzing his claim regarding the Santa Muerte evidence. He asserts that

because the Tenth Circuit analyzed his claims under plain-error review, its analysis “did

not—and could not—definitively resolve whether the district court would have excluded

the evidence under de novo review.” Pet’r’s Br. at 6.

We disagree. Although we applied plain-error review on direct appeal, the district

court correctly noted that the holding of the case was that the district court did not err in

admitting the Santa Muerte testimony. See Martinez, 88 F.4th at 1314. To be sure, we

4 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 5

could have declined to address whether the admission of the Santa Muerte evidence was

erroneous and instead resolved Mr. Martinez’s appeal on the grounds that any error was

not plain or did not affect his substantial rights. See United States v. Berryhill, 140 F.4th

1287, 1302 (10th Cir. 2025) (explaining that a party seeking relief under plain-error

review must satisfy each of the standard’s four prongs). But we did not take that

approach.

Instead, we took up the question of whether the admission of Detective Jeffers’s

Santa Muerte testimony was erroneous under Medina-Copete and concluded that it was

not. See Martinez, 88 F.4th at 1314. We reasoned that Detective Jeffers’s testimony was

“readily distinguishable from Medina-Copete,” because “[u]nlike the expert in Medina-

Copete, Detective Jeffers’s testimony was based solely on his 22 years of law-

enforcement experience, with approximately 18 years focused on narcotics, not personal

self-study.” Id. Thus, we concluded that “[n]o . . . error pervaded Detective Jeffers’s

expert testimony.” Id. at 1315. Because we held that the admission of the Santa Muerte

evidence was not erroneous, the district court correctly determined that we would have

upheld Mr. Martinez’s conviction even if he had been entitled to de novo review. Thus,

we conclude that reasonable jurists would not find wrong or debatable the district court’s

assessment that Mr. Martinez failed to prove prejudice, and Mr. Martinez is not entitled

to a COA on this claim.

Next, Mr. Martinez argues that his trial counsel performed deficiently by failing to

take sufficient curative action in response to an interruption that occurred during his trial.

Specifically, during defense counsel’s direct examination of Mr. Martinez, “a

5 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 6

spontaneous ‘robocall’ announcement played over the courtroom speakers warning that

criminals were seeking to defund the police and soliciting public support for police

against the efforts of criminals.” Martinez, 88 F.4th at 1313. The judge immediately told

the jury to disregard the robocall, took a recess to resolve the issue, and, when the jury

returned, again instructed them to disregard the robocall. Id. But Mr. Martinez contends

that defense counsel should have (1) “[o]bjected and moved for a mistrial,”

(2) “[r]equested specific curative instructions telling the jury to disregard the

characterization of ‘criminals’ seeking to harm police,” or (3) “[r]equested voir dire of

the jury to assess whether they could remain impartial.” Pet’r’s Br. at 17.

The district court rejected this argument, reasoning that Mr. Martinez failed to

establish prejudice with respect to these alleged shortcomings. Once again, the district

court pointed to this court’s decision on direct appeal, in which we held that there was

“no error in the [trial] court’s handling of this interruption” and that the robocall

interruption did not deprive Mr. Martinez of his due process protections. Martinez, 88

F.4th at 1317. We reasoned that the trial court twice gave specific and “obvious”

instructions to the jury to ignore the interruption, id. at 1317 & n.4, and that the robocall

was “a short event occurring only once” as opposed to a “constant reminder of the

accused’s condition.” Id. at 1317 (quotation marks omitted). Thus, because we have

already held that the court’s handling of the robocall interruption did not interfere with

Mr. Martinez’s rights, we conclude that reasonable jurists would not find wrong or

debatable the district court’s assessment that Mr. Martinez did not show prejudice on this

point.

6 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 7

Third, Mr. Martinez argues that his trial counsel performed deficiently by failing

to move for acquittal under Federal Rule of Criminal Procedure 29(a). The district court

rejected this claim, finding that that Mr. Martinez did not establish prejudice because he

did not point to any evidence suggesting that a Rule 29(a) motion would have been

successful. We agree.

To succeed on a Rule 29(a) motion, Mr. Martinez would have needed to show that

the evidence presented by the Government was “insufficient to sustain a conviction.”

Fed. R. Crim. P. 29(a). Because Mr. Martinez’s sole defense was entrapment, this would

require a showing that the evidence compelled a finding that Mr. Martinez was entrapped

as a matter of law. See Martinez, 88 F.4th at 1313. “[E]ntrapment as a matter of law

exists only when there is undisputed testimony which shows conclusively and

unmistakably that an otherwise innocent person was induced to commit the criminal act.”

United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005) (internal quotation marks

and brackets omitted). The district court correctly concluded that Mr. Martinez has not

made such a showing. In his briefing before this court, Mr. Martinez baldly asserts that a

Rule 29(a) motion may have succeeded. But the burden is on Mr. Martinez to establish

prejudice in support of his ineffective assistance claim, not on the Government to

disprove it. See Strickland, 466 U.S. at 693 (“[A]ctual ineffectiveness claims alleging a

deficiency in attorney performance are subject to a general requirement that the defendant

affirmatively prove prejudice.”). Because reasonable jurists would not find debatable or

wrong the district court’s assessment that Mr. Martinez failed to prove prejudice, he is

not entitled to a COA on this issue.

7 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 8

Fourth, and finally, Mr. Martinez argues that his trial counsel performed

deficiently by failing to object to the court’s jury instructions regarding his entrapment

defense. Specifically, he contends that counsel should have requested an instruction

“indicat[ing] that once entrapment is established the evidence obtained by the

Government . . . must be suppressed.” ROA at 54.

The district court rejected this claim on the basis that Mr. Martinez did not

establish prejudice, noting that the jury was specifically “instructed that entrapment

would preclude conviction.” Id. at 105. Because the jury convicted Mr. Martinez, the

district court reasoned that the jury “found beyond a reasonable doubt he was not

entrapped” and so the instruction about the consequences of an entrapment finding

“would have been irrelevant.” Id. We agree. Mr. Martinez has not persuaded us that the

claimed deficiency in the instructions undermined the jury’s ability to fairly evaluate his

entrapment theory. And his speculation that a different instruction might have irrationally

led the jury to a different verdict is insufficient to establish prejudice under Strickland.

See 466 U.S. at 695 (“An assessment of the likelihood of a result more favorable to the

defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’

and the like.”). We therefore conclude that reasonable jurists would not find the district

court’s decision wrong or debatable. Consequently, Mr. Martinez is not entitled to a COA

on this issue.

B. Cumulative Error Doctrine

Next, Mr. Martinez argues that the district court erred by failing to consider

whether the “cumulative effect of all [of trial counsel’s alleged] failures prejudiced

8 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 9

Mr. Martinez’s defense.” Pet’r’s Br. at 18. But because Mr. Martinez did not claim that

he was entitled to relief under the cumulative error doctrine in his original § 2255 motion,

we need not address this issue. See United States v. Dixon, 1 F.3d 1080, 1082 n. 2 (10th

Cir.1993) (declining to address issue not raised in original § 2255 motion), abrogated on

other grounds by Florida v. White, 526 U.S. 559 (1999); see also Jones v. Gibson, 206

F.3d 946, 958 (10th Cir. 2000) (applying waiver analysis to cumulative-error claim not

asserted in habeas petition).

C. Evidentiary Hearing

Finally, Mr. Martinez contends that the district court erred when it refused to hold

an evidentiary hearing to resolve his ineffective assistance of counsel claims. “We review

the district court’s refusal to hold an evidentiary hearing for an abuse of discretion.”

United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004). The purpose of an

evidentiary hearing is to resolve conflicting evidence, and a hearing is unnecessary when

the uncontested evidence establishes that the defendant was not prejudiced. See

Blackledge v. Allison, 431 U.S. 63, 80–83 (1977) (explaining that a petitioner not entitled

to full evidentiary hearing when he fails to raise a genuine issue of fact to be resolved by

the court). Because the undisputed facts in the record demonstrate that Mr. Martinez was

not prejudiced by his counsel’s alleged deficiencies, the district court did not abuse its

discretion in refusing to hold an evidentiary hearing.

9 Appellate Case: 25-1465 Document: 9-1 Date Filed: 02/05/2026 Page: 10

III. CONCLUSION

Because no reasonable jurist could debate the district court’s rulings, we DENY

Mr. Martinez’s request for a COA and DISMISS this matter.

Entered for the Court

Carolyn B. McHugh Circuit Judge