United States v. Velarde, 683 F. App'x 688

Eugene Velarde was convicted by a jury of conspiracy to possess with intent to distribute and to distribute ≥500 g methamphetamine in violation of 21 U.S.C. §§ 841, 846.
District court granted a downward variance at sentencing and imposed the 120‑month statutory minimum; this Court affirmed on direct appeal.
Velarde filed a pro se 28 U.S.C. § 2255 motion claiming: (1) a Fifth Amendment equal‑protection violation because the government offered plea deals to co‑defendants but not him; and (2) Sixth Amendment ineffective assistance of counsel for failing to obtain or communicate a comparable plea offer.
The district court denied relief: the equal‑protection claim was procedurally defaulted (not raised on direct appeal), and the ineffective‑assistance claim failed for lack of deficient performance and prejudice.
Velarde sought a certificate of appealability (COA) and leave to proceed in forma pauperis; the panel evaluated whether reasonable jurists could debate the district court’s rulings.

Issue	Velarde's Argument	Government/District Court Argument	Held
Whether Velarde’s equal‑protection claim was procedurally barred	He argued the claim need not be raised on direct appeal because it challenges prosecutorial conduct (failure to offer plea) rather than trial error	Claim was available on direct appeal; Velarde gave no cause/prejudice or showing of actual innocence to excuse default	Claim procedurally defaulted; COA denied
Whether counsel was ineffective for failing to obtain or communicate a plea offer	Counsel failed to secure or inform him of a plea offer comparable to co‑defendants’ offers, causing prejudice	Record shows no communicated plea offer or willingness to negotiate with Velarde; Velarde did not show a reasonable probability of a different sentence	No deficient performance or prejudice; COA denied

Slack v. McDaniel, 529 U.S. 473 (1999) (standards for COA when relief denied on procedural grounds)
Warner, 23 F.3d 287 (10th Cir. 1994) (procedural default rule for § 2255 claims)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance test: performance and prejudice)
Hooks v. Workman, 606 F.3d 715 (10th Cir. 2010) (ineffective assistance claim fails if either Strickland prong lacking)
Erickson v. Pardus, 551 U.S. 89 (2007) (pro se pleadings construed liberally)
Johnson, 821 F.3d 1194 (10th Cir. 2016) (example of prosecutorial‑conduct claim raised on direct appeal)
Pinson, 584 F.3d 972 (10th Cir. 2009) (treatment of pro se litigation and liberal construction)