United States v. Martinez: No Strickland Prejudice Where Direct Appeal Found “No Error,” Even Under Plain-Error Review; Unraised Cumulative-Error Theories Are Waived in § 2255

Introduction

In United States v. Martinez (10th Cir. Feb. 5, 2026) (unpublished order), the Tenth Circuit denied a federal prisoner’s request for a certificate of appealability (COA) to challenge the district court’s denial of his motion to vacate sentence under 28 U.S.C. § 2255. The movant, Domingo Martinez, Jr., was convicted after a jury trial of possession with intent to distribute more than fifty grams of methamphetamine, based on an attempted sale of 443.3 grams to a confidential informant. He received 144 months in prison and five years of supervised release. The Tenth Circuit previously affirmed his conviction on direct appeal. See United States v. Martinez, 88 F.4th 1310 (10th Cir. 2023).

In his § 2255 motion and COA request, Martinez raised several ineffective assistance of counsel theories, largely tied to trial objections and preservation issues (expert testimony about Santa Muerte, a courtroom “robocall” interruption, failure to file a Rule 29 motion, and alleged instructional error on entrapment). He also argued (for the first time on appeal) cumulative error and challenged the district court’s refusal to hold an evidentiary hearing.

Summary of the Opinion

Applying the COA standard from Slack v. McDaniel, 529 U.S. 473 (2000), the Tenth Circuit held that no reasonable jurist could debate the district court’s denial of § 2255 relief. The court concluded:

  • All four ineffective-assistance claims failed because Martinez did not show Strickland prejudice under Strickland v. Washington, 466 U.S. 668 (1984).
  • A cumulative-error theory was waived because it was not raised in the original § 2255 motion.
  • The district court did not abuse its discretion in denying an evidentiary hearing because the record showed no prejudice and no genuine factual dispute requiring a hearing.

The court therefore denied a COA and dismissed the appeal.

Analysis

Precedents Cited

  • Erickson v. Pardus, 551 U.S. 89 (2007) and United States v. Pinson, 584 F.3d 972 (10th Cir. 2009): The panel reiterated the familiar pro se framework—liberal construction of filings without acting as the litigant’s advocate. This sets the lens for interpreting Martinez’s arguments but does not relax the substantive constitutional standards he must meet.
  • Slack v. McDaniel, 529 U.S. 473 (2000): Slack supplies the controlling COA filter: a petitioner must show that reasonable jurists could debate the district court’s resolution or that the issues deserve encouragement to proceed. The order is a straightforward application of Slack—each claim is measured against whether it is debatable, not whether it is merely arguable in the abstract.
  • Strickland v. Washington, 466 U.S. 668 (1984) and United States v. Hollis, 552 F.3d 1191 (10th Cir. 2009): Strickland supplies the two-pronged test (deficient performance and prejudice), and Hollis confirms the court may resolve an ineffective-assistance claim by addressing only one prong. Here, the panel consistently used Hollis to focus on prejudice, concluding the claims failed even assuming arguable deficiency.
  • Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and United States v. Medina-Copete, 757 F.3d 1092 (10th Cir. 2014): These cases framed Martinez’s challenge to Detective Jeffers’s “Santa Muerte” expert testimony. Martinez argued that counsel’s failure to request a Daubert hearing and object to the Santa Muerte testimony forced him into plain-error review on direct appeal, and that de novo review would have produced exclusion as in Medina-Copete. The panel emphasized that, on direct appeal, it had already distinguished Medina-Copete and held the admission was not error.
  • United States v. Berryhill, 140 F.4th 1287 (10th Cir. 2025): Berryhill was cited for the structure of plain-error review and its four-prong test. The panel used Berryhill to explain that it could have affirmed Martinez’s conviction on a “no plainness/no substantial-rights” basis, but it did not; instead, it reached “no error.” That choice became central to the prejudice analysis.
  • United States v. Nguyen, 413 F.3d 1170 (10th Cir. 2005): Nguyen supplied the demanding standard for entrapment as a matter of law—only where undisputed testimony shows conclusively that an otherwise innocent person was induced to commit the act. This controlled the court’s evaluation of whether a Rule 29 motion would have had any realistic chance of success.
  • United States v. Dixon, 1 F.3d 1080 (10th Cir.1993) (abrogated on other grounds by Florida v. White, 526 U.S. 559 (1999)) and Jones v. Gibson, 206 F.3d 946 (10th Cir. 2000): These authorities supported the court’s refusal to entertain a new cumulative-error theory that was not raised in the original § 2255 motion. Florida v. White is referenced only to note Dixon’s partial abrogation on unrelated grounds; Dixon and Jones remain operative for the waiver principle applied.
  • United States v. Harms, 371 F.3d 1208 (10th Cir. 2004) and Blackledge v. Allison, 431 U.S. 63 (1977): Harms provided the abuse-of-discretion standard for reviewing denial of an evidentiary hearing, and Blackledge articulated the core point: a hearing is unnecessary where the record does not present a genuine factual dispute requiring resolution. The court used these cases to uphold denial of a hearing because the existing record foreclosed Strickland prejudice.

Legal Reasoning

  1. COA as a threshold merits screen (Slack)
    The panel treated the COA request as a gateway inquiry: the question was not whether Martinez could ultimately prevail, but whether the district court’s resolution of his constitutional claims was reasonably debatable among jurists. By denying the COA, the panel necessarily concluded that each argument failed at the “debatability” stage.
  2. Strickland prejudice as the decisive prong (Hollis / Strickland)
    Across all ineffective-assistance theories, the order repeatedly found the alleged attorney errors did not create a reasonable probability of a different outcome. This is a notable aspect of the court’s approach: instead of litigating counsel’s “reasonableness” in detail, it held the case turns on the absence of outcome-altering harm.
  3. Preservation/standard-of-review arguments fail where the prior appellate holding was “no error”
    Martinez’s most legally textured claim was that counsel’s failure to object converted what should have been de novo review into plain-error review on direct appeal, and that the difference in review standards mattered. The panel’s answer was doctrinally narrow but forceful: because the direct appeal opinion held there was no error in admitting the Santa Muerte testimony—after distinguishing United States v. Medina-Copete—Martinez could not show prejudice from any preservation failure. In other words, where the appellate court has already said the challenged ruling was correct, a petitioner generally cannot show a reasonable probability of a different result merely by hypothesizing a more favorable standard of review.
  4. Curative instructions and due process: robocall interruption
    Martinez argued counsel should have moved for a mistrial, asked for more tailored instructions, or requested voir dire. The panel relied on the direct appeal holding that the trial court’s immediate and repeated instruction to disregard the interruption was adequate and that the event was isolated. With no underlying due process violation and no demonstrated path to a different verdict, the ineffective-assistance claim failed for lack of Strickland prejudice.
  5. Rule 29 motion: prejudice requires a plausible showing of insufficient evidence
    Because Martinez’s defense was entrapment, showing prejudice from the absence of a Rule 29 motion effectively required demonstrating that the evidence compelled a finding of entrapment as a matter of law. By invoking United States v. Nguyen, the panel underscored how rarely that standard is met. Martinez’s assertion that a Rule 29 motion “may have succeeded” was treated as speculation insufficient to satisfy Strickland.
  6. Entrapment instruction: no prejudice where the jury necessarily rejected entrapment
    Martinez sought an instruction that if entrapment is established, “the evidence obtained by the Government . . . must be suppressed.” The district court and panel treated this as immaterial because the jury was instructed that entrapment would preclude conviction, yet it convicted—meaning it found beyond a reasonable doubt he was not entrapped. The panel also invoked Strickland’s admonition against basing prejudice on possibilities like arbitrariness or “nullification.”
  7. Cumulative error: waived if not raised in the § 2255 motion
    The panel declined to address cumulative error because it was not included in the original § 2255 motion, relying on United States v. Dixon and Jones v. Gibson. The logic is procedural and strict: the court of appeals will not generally use a COA request to expand the § 2255 case beyond what was presented to and decided by the district court.
  8. Evidentiary hearing: not required without a genuine factual dispute (Harms / Blackledge)
    The panel characterized the hearing’s purpose as resolving conflicting evidence. Where the record itself demonstrates no Strickland prejudice, an evidentiary hearing is unnecessary, and denying it is not an abuse of discretion.

Impact

Although the order is expressly “not binding precedent” (except under law-of-the-case/res judicata/collateral estoppel), it is still a useful, practice-facing synthesis of how COA requests are evaluated in the Tenth Circuit when ineffective-assistance claims overlap with issues already addressed on direct appeal. Likely impacts include:

  • Preservation-based IAC theories face a steep prejudice hurdle when the direct appeal resolved the underlying evidentiary/constitutional issue as “no error.” Petitioners will need to identify something beyond a hypothetical shift from plain-error to de novo review—e.g., new evidence, a distinct legal theory not previously decided, or a showing that the prior decision did not actually reach the “error” question.
  • COA litigation will continue to be prejudice-centric in Strickland cases. The order reinforces that even multiple alleged missteps can fail if the petitioner cannot tie them to a concrete probability of a different result.
  • Cumulative error must be pleaded in the initial § 2255 motion. Practitioners should treat cumulative error as a separate theory requiring explicit presentation, not as something that can be raised later as an appellate overlay.
  • Evidentiary hearings are unlikely where the claim is record-based and fails on prejudice; petitioners must identify disputed facts that, if resolved in their favor, would matter to Strickland.

Complex Concepts Simplified

28 U.S.C. § 2255
A post-conviction procedure allowing a federal prisoner to seek vacatur of a sentence for constitutional or certain legal errors (distinct from a direct appeal).
Certificate of Appealability (COA)
Permission to appeal the denial of a § 2255 motion. Under Slack v. McDaniel, the prisoner must show the issue is reasonably debatable among jurists.
Ineffective assistance of counsel (Strickland)
Requires showing (1) deficient performance and (2) prejudice—i.e., a reasonable probability the outcome would have differed without the error. Courts may deny relief solely for lack of prejudice.
Plain-error review vs. de novo review
De novo review is fresh review without deference. Plain-error is more demanding and applies when an issue was not properly preserved. Martinez argued counsel’s failures changed the standard of review on direct appeal; the panel held that did not matter because the prior holding was “no error.”
Daubert hearing
A proceeding to test the reliability/fit of expert testimony before it is admitted.
Rule 29 motion
A request for judgment of acquittal on the ground that the evidence is insufficient to convict.
Entrapment as a matter of law
A rare finding that the evidence conclusively shows the defendant was induced and not predisposed—so strong that no reasonable jury could find otherwise.
Cumulative error
A doctrine under which multiple errors, each possibly harmless alone, may collectively require relief. Here, the court rejected it on procedural grounds (not raised below).
Evidentiary hearing
A hearing to resolve material factual disputes. If the record already defeats the claim (especially on prejudice), a hearing is not required.

Conclusion

The Tenth Circuit’s order in United States v. Martinez is a focused application of COA and Strickland doctrine: where the direct appeal has already held there was no error in the challenged trial event, a § 2255 movant will usually be unable to show Strickland prejudice by arguing counsel merely failed to preserve objections for a more favorable standard of review. The decision also underscores two practical rules: cumulative-error claims should be expressly raised in the § 2255 motion, and evidentiary hearings are unnecessary when the record forecloses prejudice.