                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 23, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                         No. 09-3025
 v.                                          (D.C. Nos. 5:08-CV-04056-SAC and
                                                   5:04-CR-40154-SAC-1)
 PAUL PADILLA-RODRIGUEZ,                                  (D. Kan.)

      Defendant - Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


        Paul Padilla-Rodriguez seeks a certificate of appealability (COA) that

would allow him to appeal from the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. 1 See 28 U.S.C. §

2253(c)(1)(B). Affording solicitous consideration to Mr. Padilla-Rodriguez’s pro


        *
              This Order is not binding precedent, except under the doctrines of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. After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a). The
case is therefore ordered submitted without oral argument.
        1
              Because the district court did not address the issuance of a COA, its
failure to issue a COA was deemed a denial pursuant to Fed. R. App. P. 22(b)(1)
and 10th Cir. R. 22.1(C).
se filings, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007),

we conclude that Mr. Padilla-Rodriguez has failed to make “a substantial showing

of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). We

accordingly deny his request for a COA and dismiss his appeal.

                                 BACKGROUND

      Mr. Padilla-Rodriguez pleaded guilty, pursuant to a plea agreement, to

aggravated reentry into the United States as a previously removed alien, in

violation of 8 U.S.C. § 1326(a) and (b)(2). The district court denied Mr. Padilla-

Rodriguez’s request to withdraw his guilty plea and his counsel’s motion to

withdraw. The court determined that the advisory United States Sentencing

Guidelines range was seventy to eighty-seven months’ imprisonment, and it

imposed a seventy-month sentence. On direct appeal, this court granted the

government’s motion to enforce the plea agreement waiver and dismissed Mr.

Padilla-Rodriguez’s appeal. See United States v. Padilla-Rodriguez, 216 F.

App’x 818 (10th Cir. 2007).

      Mr. Padilla-Rodriguez then filed a § 2255 motion in the district court

alleging that his trial counsel was constitutionally ineffective under Strickland 2

because (1) his counsel had failed to provide a translator, and thus Mr. Padilla-

Rodriguez had not understood the plea agreement he signed and had not

knowingly and voluntarily agreed to enter into the agreement; (2) his counsel

failed to argue his motion to withdraw the guilty plea in the manner that Mr.


      2
             See Strickland v. Washington, 466 U.S. 668 (1984).

                                         -2-
Padilla-Rodriguez had instructed; and (3) in his motion to withdraw as counsel,

Mr. Padilla-Rodriguez’s attorney failed to state the reasons that Mr. Padilla-

Rodriguez wished him to withdraw. The government moved to enforce the plea

agreement waiver of Mr. Padilla-Rodriguez’s right to collaterally attack his

conviction and sentence; Mr. Padilla-Rodriguez replied with a request for an

evidentiary hearing.

      The district court denied Mr. Padilla-Rodriguez’s request for an evidentiary

hearing and granted the government’s motion regarding his second and third

claims of ineffective assistance, as noted above. The court requested additional

briefing on the first claim, noting that the ineffective assistance of counsel claim

regarding the failure to provide a translator was potentially outside the scope of

the plea agreement waiver. Following further submissions by the parties, the

district court denied Mr. Padilla-Rodriguez relief under § 2255 on this separate

ground as well and entered judgment for the government.

                            STANDARD OF REVIEW

      We will issue a COA permitting Mr. Padilla-Rodriguez to appeal only if he

makes “a substantial showing of the denial of a constitutional right.” See 28

U.S.C. § 2253(c)(2). To make this showing, he must establish “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.” See Slack v. McDaniel,

529 U.S. 473, 484 (2000) (internal quotation marks omitted). Our inquiry does

not require a “full consideration of the factual or legal bases adduced in the

                                         -3-
support of the [applicant’s] claims,” but rather “an overview of the claims . . . and

a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003).

                                   DISCUSSION

      As grounds for a COA, Mr. Padilla-Rodriguez asserts that his counsel “was

ineffective for misleading [him] into thinking” that either thirty-six or forty-eight

months of imprisonment was “the most that he would receive,” and so his counsel

rendered his plea unknowing and involuntary. Application for COA at 2-3 (filed

May 8, 2009); Opening Br. at 2-3 (filed May 8, 2009). While Mr. Padilla-

Rodriguez does not specifically raise the translator issue again here, he argues

that “with no understanding of English” he was dependent upon his counsel’s

advice and thus should be resentenced to only thirty-six to forty-eight months’

imprisonment. Application for COA at 2. Thus, his argument in support of a

COA is essentially that he did not knowingly and voluntarily enter into his plea

agreement due to: first, his reliance on his counsel’s false sentencing promise and

second, his counsel’s failure to adequately ensure he understood the plea

agreement given his lack of English language skills.

      Generally, a waiver of collateral attack rights under § 2255 is enforceable

when “the waiver is expressly stated in the plea agreement and where both the

plea and the waiver were knowingly and voluntarily made.” United States v.

Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001); United States v. Hahn, 359

F.3d 1315, 1325 (10th Cir. 2004) (en banc) (explaining that we determine: (1)

whether the disputed issue falls within the scope of the waiver of rights; (2)

                                         -4-
whether the defendant knowingly and voluntarily waived his or her rights; and (3)

whether enforcement of the waiver would result in a miscarriage of justice). We

narrowly construe the waiver in favor of Mr. Padilla-Rodriguez, but we also will

hold him to its lawful terms. Hahn, 359 F.3d 1315, 1325, 1328.

      By signing the plea agreement, Mr. Padilla-Rodriguez expressly and

specifically waived “any right to appeal or collaterally attack any matter in

connection with this . . . conviction and sentence.” R., Doc. 50 Attach. 1, at 8

(Plea Agreement, dated Oct. 4, 2005). He further expressly waived “any right to

challenge a sentence or otherwise attempt to modify or change his sentence or

manner in which it was determined in any collateral attack, including, but not

limited to, a motion brought under Title 28, U.S.C. § 2255 . . . except as limited

by United States v. Cockerham.” R., Doc. 50 Attach. 1, at 8. Thus, Mr. Padilla-

Rodriguez’s right to challenge his conviction and sentence through a § 2255

motion falls within the scope of rights waived by virtue of the plea agreement.

      Liberally construed, the ineffective assistance of counsel argument Mr.

Padilla-Rodriguez set forth in his § 2255 motion asserts that due to his counsel’s

deficient performance, he did not knowingly and voluntarily enter into his plea

agreement. In determining whether Mr. Padilla-Rodriguez knowingly and

voluntarily waived his rights, we primarily examine two factors. First, we look at

“whether the language of the plea agreement states that the defendant entered the

agreement knowingly and voluntarily.” Hahn, 359 F.3d at 1325. Here, the plea

agreement required Mr. Padilla-Rodriguez to sign and acknowledge that he

“voluntarily” and “knowingly” waived his collateral attack rights. Mr. Padilla-

                                         -5-
Rodriguez acknowledged by his signature that he had read the plea agreement and

understood it, that he had discussed the plea agreement with his attorney and was

fully satisfied with his attorney’s advice and representation, and that he was

entering into the agreement and pleading guilty “freely and voluntarily.” R., Doc.

50 Attach. 1, at 8, 11-12.

      Second, we examine whether an adequate Fed. R. Crim. P. 11 colloquy took

place. Hahn, 359 F.3d at 1325. On direct appeal, Mr. Padilla-Rodriguez raised

an argument nearly identical to the one raised here, as he asserted “that he did not

knowingly and voluntarily waive his appellate rights because he lack[ed]

understanding of the English language” and that “the court should take into

consideration his body language or non-spoken gestures and his lack of formal

education.” See Padilla-Rodriguez, 216 F. App’x at 820. Mr. Padilla-Rodriguez

does not dispute that the plea colloquy transpired as described in our decision on

his direct appeal:

             The transcripts of defendant’s Rule 11 plea colloquy
             demonstrate that he was given an interpreter at the start of the
             Rule 11 plea colloquy, and that the entire colloquy and plea
             hearing proceedings were translated to and for him. The
             defendant stated that he had a ninth-grade education. At no
             time did he indicate that he had any difficulty understanding
             the charges against him, the plea agreement, the appeal waiver,
             or any aspect of the plea colloquy, and he offers no evidence
             now that the interpreter was inadequate or insufficient. At the
             plea colloquy, the court summarized the plea agreement, and
             informed him of the constitutional rights he was waiving,
             including the right to appeal. Defendant represented to the
             court that he had reviewed the written plea agreement, which
             he signed, with his attorney, that he was entering into the plea
             agreement of his own free will, that he had a full opportunity
             to discuss with his attorney the constitutional rights he was

                                         -6-
             waiving, including his right to appeal, and that he was satisfied
             with his attorney’s representation. [S]tatements made in a plea
             colloquy are presumed to be true.

Id. (alteration in original) (internal quotation marks omitted).

      Thus, on direct appeal this court examined both the language of the plea

agreement and the plea colloquy proceedings and found that “defendant’s appeal

waiver was knowingly and voluntarily given.” Id. We believe that consideration

of these same elements likewise demonstrates that Mr. Padilla-Rodriguez

knowingly and voluntarily entered the plea agreement and waived his right to

collaterally attack his sentence—as the waiver is contained in the same document

and was discussed at the same colloquy as those previously examined on direct

appeal. See id.; Cockerham, 237 F.3d at 1188-89; R., Doc. 50 Attach. 1, at 8-9.

      We note that even a knowing and voluntary waiver of a right that falls

within the scope of the plea agreement waiver is subject to certain exceptions, the

existence of which would render enforcement of the waiver a “miscarriage of

justice.” These exceptions are found:

             [1] where the district court relied on an impermissible factor
             such as race, [2] where ineffective assistance of counsel in
             connection with the negotiation of the waiver renders the
             waiver invalid, [3] where the sentence exceeds the statutory
             maximum, or [4] where the waiver is otherwise unlawful.

Hahn, 359 F.3d at 1327 (internal quotation marks omitted). A waiver is

“otherwise unlawful” if subject to an error that “‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’” Id. (quoting United States

v. Olano, 507 U.S. 725, 732 (1993)).

      The district court had ordered additional briefing on Mr. Padilla-

                                          -7-
Rodriguez’s translator argument because it determined that this claim appeared to

be subject to the second exception to enforcement listed above, which it termed

“the Cockerham exception.” See Cockerham, 237 F.3d at 1187 (“[A] plea

agreement waiver of postconviction rights does not waive the right to bring a §

2255 petition based on ineffective assistance of counsel claims challenging the

validity of the plea or the waiver.”). Having reviewed the COA application and

brief and the entire record before us, we agree with the district court that Mr.

Padilla-Rodriguez has not set forth facts that arguably would demonstrate that the

claimed ineffectiveness of his counsel rendered the waiver invalid. Even

assuming arguendo that Mr. Padilla-Rodriguez’s ineffective assistance of counsel

argument could equate to a claim challenging the validity of the plea or the

waiver within the meaning of Cockerham, it is nonetheless without merit, and a

COA is not warranted on this argument.

      Insofar as Mr. Padilla-Rodriguez is arguing that his attorney misled him

into thinking that he would receive a shorter sentence, “[a] miscalculation or

erroneous sentence estimation by defense counsel is not a constitutionally

deficient performance rising to the level of ineffective assistance of counsel.”

United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993). Moreover, the

district court properly advised Mr. Padilla-Rodriguez regarding the maximum

sentence he could receive. At the plea colloquy, Mr. Padilla-

Rodriguez—accompanied by an interpreter—told the court that he understood the

terms of the plea agreement and that no one had “made any other or different

promises to [him] in regard to [his] plea of guilty other than set forth in the plea

                                          -8-
agreement.” R., Doc. 89, Tr. at 7-8 (Change of Plea Hr’g, dated Oct. 4, 2005).

And, finally, Mr. Padilla-Rodriguez answered “no” when asked whether anyone

had “predicted or promised with certainty” what his sentence would be. R., Doc.

89, Tr. at 16-17. “[S]tanding alone, an attorney’s erroneous sentence estimate

does not render a plea involuntary”; Mr. Padilla-Rodriguez thus cannot show

ineffective assistance on this ground. United States v. Silva, 430 F.3d 1096, 1099

(10th Cir. 2005).

      To the extent Mr. Padilla-Rodriguez’s ineffective assistance of counsel

argument relies on his lack of understanding of English and its effect on his

entering into the plea agreement, again we note that the panel on direct appeal

rejected his argument that his lack of English skills rendered his waiver of his

appellate rights involuntary or unknowing. See Padilla-Rodriguez, 216 F. App’x

at 820. Mr. Padilla-Rodriguez offers no reason that the same finding would not

apply to the waiver of his collateral attack rights contained in the same plea

agreement. Mr. Padilla-Rodriguez’s COA application simply states that because

he had “no understanding of English,” he “depend[ed] on his defense counsel to

guide him through the plea deal.” COA Application at 2. “Instead,” according to

Mr. Padilla-Rodriguez, “counsel used [his] lack of understanding against [him] by

misleading him into accepting a plea that [he] thought was 36 to 48 months.”

Opening Br. at 3. Mr. Padilla-Rodriguez offers no specific argument as to what

he did not understand about the plea process or the plea agreement, beyond his

contention that his reliance upon his counsel’s advice rendered his plea

unknowing and involuntary.

                                         -9-
      It is undisputed that regardless of whether Mr. Padilla-Rodriguez had an

interpreter during “the plea deal,” an interpreter was provided at the plea

colloquy—during which the significant terms of the plea agreement were stated

aloud by the district court and acknowledged by Mr. Padilla-Rodriguez. At that

colloquy, Mr. Padilla-Rodriguez stated that he was satisfied with the services of

his attorney, understood the terms of his plea agreement, and that no one had

predicted or promised with certainty what his sentence would be. Further, Mr.

Padilla-Rodriguez’s counsel submitted a sworn affidavit to the district court

stating that: he is a native Spanish speaker and holds a degree in Spanish; during

numerous meetings with his client, they always spoke in Spanish; and he had read

and explained the plea agreement in Spanish to Mr. Padilla-Rodriguez. The

record therefore demonstrates that counsel’s conduct in connection with the

negotiation of the plea agreement waiver did not render the waiver invalid.

      Finally, we discern no other basis to find a miscarriage of justice in

enforcing the waiver. There is nothing in the record to suggest that Mr. Padilla-

Rodriguez’s claims are subject to any other exception to enforcement: the district

court did not rely on an impermissible factor such as race, the sentence does not

exceed the statutory maximum, and the waiver is not otherwise unlawful. See

Hahn, 359 F.3d at 1327. Thus, enforcement of the plea agreement waiver to bar

Mr. Padilla-Rodriguez’s § 2255 motion will not result in a miscarriage of justice.

                                  CONCLUSION

      For the foregoing reasons, no reasonable jurist could debate the propriety

of the district court’s ruling. Mr. Padilla-Rodriguez’s request for a certificate of

                                         -10-
appealability is DENIED, and this appeal is DISMISSED. His motion to proceed

in forma pauperis is GRANTED.


                                           Entered for the Court



                                           Jerome A. Holmes
                                           Circuit Judge




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