UNITED STATES of America, Plaintiff-Appellee, v. Doroteo RENDON-MARTINEZ, Defendant-Appellant.
No. 12-6175
United States Court of Appeals, Tenth Circuit
Sept. 27, 2012
Doroteo Rendon-Martinez, Greenville, IL, pro se.
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
NEIL M. GORSUCH, Circuit Judge.
The district court found Doroteo Rendon-Martinez guilty of being a felon in possession of a firearm, being an illegal alien in possession of a firearm, and illegal reentry after aggravated battery. Mr. Rendon-Martinez appealed his conviction
We may grant this request, however, only if Mr. Rendon-Martinez makes a “substantial showing of the denial of a constitutional right.”
Mr. Rendon-Martinez has not met this standard. To establish ineffective assistance of counsel, a defendant must show that (1) his counsel‘s performance fell below an objective standard of reasonableness and (2) the deficient performance resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). Mr. Rendon-Martinez first argues that stipulating to the elements of the gun and immigration offenses didn‘t benefit him in any way. This is untrue: as a result of the stipulation, he received a two-point reduction in his sentencing guideline for his acceptance of responsibility and, by not signing a plea agreement, he preserved his right to appeal. And, anyway, Mr. Rendon-Martinez didn‘t contest the stipulated elements—his gun possession, his status as an illegal alien, and his status as a felon—and three police officers witnessed him handling the gun. Stipulating was a sensible, not deficient, strategy.
Mr. Rendon-Martinez next contends that under (a novel reading of) Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), his trial counsel was deficient by failing to request a favorable guilty plea. These cases require defense counsel to communicate favorable formal plea offers made by the prosecution as a general rule, Frye, 132 S.Ct. at 1409, and hold that a court may find ineffective assistance when counsel advises the petitioner to reject a favorable plea offer and go to trial, even if the ensuing trial is fair, Lafler, 132 S.Ct. at 1385-86. But there was no plea offer made here, and there‘s no right to a plea offer. Id. at 1387. And, besides, Mr. Rendon-Martinez couldn‘t show prejudice anyway: the district court correctly rejected Mr. Rendon-Martinez‘s contention that a favorable plea might have been forthcoming as “mere speculation,” insufficient to satisfy the prejudice prong. See Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).
We grant Mr. Rendon-Martinez‘s motion to proceed in forma pauperis, but deny his request for a COA and dismiss this appeal.