June 6, 2022 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. Michael Benitez-Lopez, also known as Mikey, also known as Money Mike

FILED
United States Court of Appeals
Tenth Circuit
June 6, 2022
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL BENITEZ-LOPEZ, also
known as Mikey, also known as
Money Mike,
Defendant - Appellant.
No. 22-1045
(D.C. Nos. 1:21-CV-00477-PAB
& 1:18-CR-00328-PAB-6)
(D. Colo.)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
This matter is before the court on Michael Benitez-Lopez’s pro se request1
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
1The court construes Benitez-Lopez’s filings liberally because he is not
represented by counsel. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This court will not, however, act
as a pro se litigant’s advocate. Hall, 935 F.2d at 1110.
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showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies
his request for a COA and dismisses this appeal.
Following a jury trial, Benitez-Lopez was convicted of multiple drug
crimes. See 18 U.S.C. §§ 841, 843, 846. The district court sentenced him to 180
months’ imprisonment on count one (the conspiracy count), 48 months’
imprisonment on count eight (the use-of-a-communication-facility-in-connection-
with-a-drug-trafficking-offense count), and 180 months’ imprisonment on count
10 (the possession-of-cocaine count). The district court ordered that all three
sentences run concurrently. Benitez-Lopez appealed and this court affirmed.
United States v. Benitez-Lopez, 834 F. App’x 463, 466 (10th Cir. 2020).
Thereafter, Benitez-Lopez filed the instant, timely § 2255 motion, raising
substantive and ineffective-assistance-based challenges to his convictions.
In a comprehensive and well-stated order, the district court denied Benitez-
Lopez’s request for collateral relief. The district court concluded Benitez-
Lopez’s due process and double jeopardy challenges were procedurally barred
because they were not raised on direct appeal. Nevertheless, the district court
considered the merits of these claims under the rubric of ineffective assistance of
trial and appellate counsel. The district court concluded Benitez-Lopez’s
ineffective-assistance-of-counsel claims failed because the objections he asserted
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counsel should have raised at trial or on appeal were without merit. See
Strickland v. Washington, 466 U.S. 668, 678-88 (1984).
Benitez-Lopez 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,
336 (2003). To be entitled to a COA, Benitez-Lopez must make “a 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 Benitez-Lopez’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
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conclude Benitez-Lopez is not entitled to a COA. In so concluding, this court has
nothing to add to the district court’s cogent, thorough order denying his § 2255
motion. Accordingly Benitez-Lopez’s request for a COA is DENIED and this
appeal is DISMISSED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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