                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 15, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 JOE NUNEZ,
               Petitioner–Appellant,                     No. 09-1254
          v.                                 (Case No. 08-CV-01732-CMA-CBS)
 PEOPLE OF THE STATE OF                                    (D. Colo.)
 COLORADO; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,
               Respondents–Appellees.


                                       ORDER *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Appellant, a pro se state prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. In exchange for

the dismissal of several related charges and two additional felony cases against

him, Appellant pled guilty in state court to possessing between 25 and 400 grams

of cocaine with intent to distribute, a class three felony. The potential sentencing

range for this count, as Appellant was informed several times in both the written

plea agreement and in the plea hearing, was four to sixteen years of



      *
        This order is not binding precedent, except under the doctrines of law of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.
imprisonment, followed by a mandatory five-year period of parole. Appellant

was ultimately sentenced to the maximum sentence of sixteen years’

imprisonment plus five years of parole. He appealed to the Colorado Court of

Appeals, arguing that his guilty plea was not knowing, voluntary, and intelligent

because the transcript of the plea hearing demonstrated that defense counsel was

confused about the applicable sentencing range. The Colorado appellate court

concluded that the written plea agreement signed by Appellant, the numerous oral

advisements by the trial court, together with Appellant’s repeated assurances that

he understood the possible penalty he faced as a result of his guilty plea and his

statement that his attorney had not made any promises to him, refuted his claim

that his plea was involuntary. Appellant’s petition for certiorari was denied by

the Colorado Supreme Court.

      Appellant subsequently filed a § 2254 habeas petition in the federal district

court in which he argued that his plea was not knowing and voluntary and that he

was denied effective assistance of counsel in relation to the entry of the plea. The

district court concluded that the ineffective assistance claim had not been

exhausted and was now procedurally defaulted. As for the remaining claim, the

magistrate judge concluded that the state courts’ holding that Appellant

knowingly and voluntarily entered a plea of guilty was not contrary to clearly

established federal law nor based on an unreasonable determination of the facts in

light of the evidence presented. See 28 U.S.C. § 2254(d). The district court

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agreed with the magistrate judge and therefore dismissed the case.

      To obtain a certificate of appealability, Appellant must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, he must demonstrate “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).

      In his request for a certificate of appealability, Appellant argued that he

was not clear on the sentence he could receive and therefore his plea was not

made voluntarily, knowingly, and intelligently. He also argued that the district

court erred by dismissing his petition without holding an evidentiary hearing. 1

      After carefully reviewing Appellant’s filings in this court, the district

court’s disposition, and the record on appeal (particularly the written plea

agreement and the transcript of the plea hearing), we conclude that reasonable

jurists would not debate the district court’s dismissal of Appellant’s claims nor its


      1
        Appellant further argues that he was sentenced under the wrong
subsection because the state only proved through testing that he possessed 7.68
grams of cocaine and did not test the 65 grams he possessed on a separate
occasion. This argument was not raised in the state courts nor in the district court
and thus has not been properly preserved for appeal in this court. Moreover,
since Appellant voluntarily pled guilty to possession of 25 to 400 grams of
cocaine, he cannot now complain that he should have been sentenced based on the
lesser amount involved in one of the dropped cases against him.

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decision not to hold an evidentiary hearing in this case. Therefore, for

substantially the reasons set forth by the magistrate judge and district court, we

DENY Appellant’s request for a certificate of appealability and DISMISS the

appeal. We GRANT Appellant’s motion for leave to proceed in forma pauperis.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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