A § 2255 COA After a Freestanding Innocence Claim

Rolando Cifuentes-Lopez asked the Tenth Circuit for permission to appeal the denial of his motion to vacate a federal sentence. On November 2, 2026, the court denied that certificate of appealability and dismissed the appeal. The order in United States v. Cifuentes-Lopez, No. 26-6138 (Read the decision (PDF)), is not a published opinion.

The order says it is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. The court's rules page is here.

What the court of appeals decided

The appeal was from the denial of a motion under 28 U.S.C. § 2255. The order quotes 28 U.S.C. § 2253(c)(1)(B) for the point that no appeal is allowed from a "final order in a proceeding under section 2255" unless the movant first obtains a certificate of appealability. It then denied the certificate because Cifuentes-Lopez had not "made a substantial showing of the denial of a constitutional right." § 2253(c)(2).

The order states the test it applied, quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). He had to show 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." The order also quotes Miller-El for two limits. The court makes "a preliminary, though not definitive, consideration of the [legal] framework." He must "prove something more than the absence of frivolity or the existence of mere good faith." A certificate of appealability is a jurisdictional prerequisite to the appeal. Miller-El, 537 U.S. at 335-36.

The last lines of the order are the disposition: the request for a certificate of appealability "is DENIED and this appeal is DISMISSED." The court said that review of the brief, the district court order, and the record "demonstrates Cifuentes-Lopez is not entitled to a COA," and that "this court has nothing to add to the thoughtful analysis set out in the district court order."

What the district court had already ruled

The district court order is United States v. Cifuentes-Lopez, Nos. CR-19-364-G and CIV-23-684-G (W.D. Okla. July 21, 2026) (Read the district court order (PDF)). The court of appeals' docket line is D.C. No. 5:23-CV-00684-G. The district court denied the § 2255 motion and denied a certificate of appealability under Rule 11(a) of the Rules Governing Section 2255 Proceedings.

The indictment charged two counts of child sex trafficking. 18 U.S.C. §§ 1591(a)(1), (b)(2), and (c), 1594(a), and 2. He pleaded guilty. The court of appeals, quoting the direct appeal, described that plea as engaging in prohibited commercial sexual conduct "with two minors on one occasion each." United States v. Cifuentes-Lopez, 40 F.4th 1215, 1217 (10th Cir. 2022). The sentence was 292 months on each count, concurrent. The direct appeal affirmed the sentence. A later appeal set aside the restitution award. That later appeal is not this § 2255 case.

The district court read the § 2255 motion as three grounds: actual innocence, a due-process claim about Spanish interpretation at the guilty plea, and ineffective assistance of trial counsel. It denied a hearing. 28 U.S.C. § 2255(b) says no hearing is required when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." The court cited United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996).

On actual innocence, the district court wrote that the claim "is foreclosed by Tenth Circuit precedent, which holds that actual innocence is not, in and of itself, a cognizable basis for relief under 28 U.S.C. § 2255." It quoted Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th Cir. 2019), through an unpublished district disposition, for the line that "actual innocence does not constitute a freestanding basis for habeas relief," while a claim of actual innocence can be used as a gateway to overcome a procedural bar. It then wrote that actual innocence "cannot provide a substantive claim for relief from his conviction[]." The court of appeals described that same point as the district court noting, under binding precedent including Farrar, that "a freestanding claim of actual innocence is not a cognizable basis for relief under § 2255."

That is not the deadline gateway discussed elsewhere on this site. The district court said the innocence claim here was offered as a ground for relief by itself. The court of appeals did not grant review of that ground.

On interpretation, the district court concluded he "has not shown a lack of fundamental fairness and is not entitled to relief on this basis pursuant to § 2255." It quoted United States v. Sandoval, 154 F.4th 186, 194 (4th Cir. 2025), for the "basic constitutional inquiry": whether any inadequacy in the interpretation made the trial fundamentally unfair. The court of appeals cited that discussion with "Cf." A certified interpreter was present at the change-of-plea hearing and was told to notify the court if understanding failed. No one raised a translation problem. He affirmed under oath that he "fully underst[ood] the charges." The court of appeals quoted that passage and said it was citing Ramirez v. Price, No. 93-1382, 1994 WL 704483 (10th Cir. Dec. 19, 1994), an unpublished and nonbinding decision, only for persuasive value. The same footnote says that is true of each unpublished disposition cited in the court of appeals order.

On counsel, the district court applied Strickland v. Washington, 466 U.S. 668, 687 (1984): deficient performance and prejudice. It found the record showed counsel did object to the sentencing enhancements, in the presentence report, in sentencing papers, and at the hearing. The direct appeal held that "the district court correctly applied the enhancements." Cifuentes-Lopez, 40 F.4th at 1217. The district court then applied United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989): "Absent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255." It also cited United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Separate allegations about the interpreter and a restitution hearing were, in the district court's words, "[c]onclusory allegations" that did not establish deficient performance. The court of appeals summarized those counsel rulings as either foreclosed by the direct appeal or inconsistent with the trial record.

What it means for a § 2255 motion

• Separate a freestanding innocence claim from a gateway. In this record, the district court treated actual innocence, offered by itself, as not a cognizable § 2255 claim, quoting Farrar. The same quotation says innocence can still be used to pass a procedural bar. This court of appeals order does not add a new binding rule. It denies a certificate of appealability and adopts the district court's analysis.

• A certificate of appealability is the appeal. Without it, the court of appeals dismissed. The order applies the Miller-El debate standard, not a forecast that the appeal would have succeeded.

• A translation claim looks at the plea record. Here the district court relied on the interpreter's presence, the absence of a contemporaneous objection, and the sworn statement that he understood the charges. The court of appeals left that analysis in place.

• A point already decided on direct appeal is hard to repeat. The district court applied Prichard and Warner to the enhancements the direct appeal had already upheld. Ineffective-assistance allegations still had to meet Strickland, and conclusory ones did not.

Pull the § 2255 motion, the plea transcript, and the direct-appeal opinion.