United States v. Alas, No. 22-7049 (10th Cir. 2023)

Annotate this Case

Download PDF

Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, Page: 1 FILED United States Court of Appeals Tenth Circuit March 3, 2023 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. NELSON ALAS, No. 22-7049 (D.C. Nos. 6:19-CV-00219-RAW & 6:17-CR-00049-RAW-2) (E.D. Okla.) Defendant - Appellant. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________ Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________ This matter is before the court on Nelson Alas’s pro se request 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 showing of the denial of a constitutional right,” id. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. * Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 2 § 2253(c)(2), this court denies his request for a COA and dismisses this appeal. 1 Alas pleaded guilty to a single count of conspiracy to possess with intent to distribute large quantities of methamphetamine. See 21 U.S.C. §§ 841, 846. In exchange for Alas’s guilty plea, the government dismissed numerous additional substantive counts and a count seeking forfeiture of assets derived from the conspiracy. The district court imposed a sentence of 135 months’ imprisonment, a term at the bottom of the advisory range set out in the Sentencing Guidelines. Thereafter, Alas filed the instant § 2255 motion, asserting the government breached the plea agreement by failing to adequately make the district court aware, by the time of sentencing, of any assistance Alas provided “in any ongoing investigation into criminal activity within the Eastern District of Oklahoma and elsewhere, or in the prosecution The government has filed a motion to dismiss this appeal as untimely. As the basis for that motion, the government asserts Alas was obligated to file his notice of appeal within fourteen days of the entry of the judgment. See Gov’t Motion at 3 (citing Fed. R. App. P. 4(b)(1)(a)(i)). In a proceeding under § 2255, however, the notice of appeal must be filed within sixty days of entry of the judgment. 28 U.S.C. § 2107(b)(1); Fed. R. App. P. 4(a)(1)(B). This is true because proceedings under § 2255 are civil in nature and involve the United States and/or one its officers or employees sued in an official capacity. United States v. Williams, 790 F.3d 1059, 1077 n. 14 (10th Cir. 2015); United States v. Cruz, 774 F.3d 1278, 1284 (10th Cir. 2014); United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). Alas filed his notice of appeal within the sixty-day window and his appeal is, therefore, timely. Accordingly, the government’s motion to dismiss the appeal as untimely is DENIED. 1 2 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 3 of another person who has committed a criminal offense.” He also raised two overarching claims of ineffective assistance of counsel. The district court denied Alas’s request for collateral relief. As to Alas’s claim the government breached the plea agreement, the district court found it had, in fact, been made aware of Alas’s cooperation and that the matter had been vetted at the sentencing hearing. Furthermore, the district court concluded it was well-aware of its authority to vary or depart sua sponte based on any such cooperation and that the record demonstrated Alas was not entitled to such relief. As to Alas’s claims of ineffective assistance, the district court concluded they were inconsistent with facts and the record and, more importantly, at odds with “solemn declarations” Alas made “in open court” during the plea colloquy. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”). Alas 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, 335–36 (2003). To be entitled to a COA, Alas must make “a 3 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 4 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 Alas’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 conclude Alas is not entitled to a COA. In so concluding, this court has nothing to add to the district court’s thorough order denying Alas’s § 2255 4 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 5 motion. Accordingly, Alas’s request for a COA is DENIED and this appeal is DISMISSED. Entered for the Court Michael R. Murphy Circuit Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.