                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      January 31, 2007
                    UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff-Appellee,                               No. 06-4139
 v.                                            (D.C. Nos. 1:05-CV-147-TC and
                                                      1:03-CR-62-TC)
 JO SE W . A PA RIC IO ,                                  (D. Utah)

       Defendant-Appellant.



                                      OR DER


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


             Defendant-Appellant Jose Aparicio, proceeding pro se, seeks leave to

appeal the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or

correct his sentence. M r. A paricio pled guilty to a violation of 21 U.S.C. §

841(b)(1)(A), namely, possession with intent to distribute 107 grams of

methamphetamine, and acceded to a plea agreement pursuant to which he waived

his rights of both direct appeal and collateral attack. He took no direct appeal,

but M r. Aparicio now seeks to set aside his plea agreement and proceed to trial,

arguing his counsel was constitutionally ineffective under Strickland v.

W ashington, 466 U.S. 668 (1986), and attacking the length of his sentence on

other constitutional grounds. Because M r. Aparicio has not shown that his
counsel’s performance was so deficient as to taint the voluntariness of the plea or

the waiver agreement, the district court denied his motion. W e concur in the

result, though on slightly different reasoning.

      Prior to appealing the denial of a motion to vacate, set aside, or correct

sentence sought under 28 U.S.C. § 2255, federal law requires the defendant first

to obtain a certificate of appealability (“COA”). Id. § 2253(c)(1). This

requirement is jurisdictional. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003);

see United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004) (noting

applicability of the M iller-El rule to § 2255 motions). The district court denied

M r. Aparicio’s request for COA below, which he has renewed in this court.

      To obtain a COA under § 2253(c), a habeas prisoner must make a
      substantial showing of the denial of a constitutional right, a
      demonstration that . . . includes showing 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 w ere
      “adequate to deserve encouragement to proceed further.”

Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463

U.S. 880, 893 (1983)). W hen determining whether COA should issue, we do not

make a definitive inquiry under standards prescribed by the Antiterrorism and

Effective Death Penalty Act of 1996, because the COA review is distinct from the

merits review of the petition. M iller-El, 537 U.S. at 342. Our only question here

“is the debatability of the underlying constitutional claim, not the resolution of

that debate.” Id.



                                         -2-
      “[A] waiver of collateral attack rights brought under § 2255 is generally

enforceable where the w aiver 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). However, “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.” Id. at 1187. M r. Aparicio’s § 2255 motion

asserts three claims: that his counsel (1) “deceived [him] into pleading guilty with

defective advice and under a false premise of the situation,” (2) “failed to

investigate potential mitigating facts for sentencing purposes and also failed to

appraise him [of] all relevant information to [sic] his plea agreement, indictment,

[and] charges,” and (3) “relieved the government [of] its burden of proof by

failing to object . . . to the amount of drugs, the type and purity level.” The third

and first half of the second points challenge M r. Aparicio’s sentencing, and he

knowingly and voluntarily waived his right to make these challenges in his plea

agreement. See Cockerham, 237 F.3d at 1184 (“[C]laims of ineffective

representation concerning sentencing generally do not survive the § 2255

waiver.”); id. at 1188 (finding challenges to counsel’s action in relieving the

government of its burden under U nited States v. Glover, 97 F.3d 1345 (10th Cir.

1996), address sentencing and are thus waiveable). The first and latter half of the

second points, on the other hand, plainly challenge M r. Aparicio’s representation

                                         -3-
at the plea agreement stage as ineffective and thus could not be waived under

Cockerham.

      Nonetheless, it is plain from the record before us that M r. Aparicio fully

understood the consequences of the plea agreement and entered into it knowingly

and voluntarily. As the district court noted in its ruling denying M r. Aparicio’s §

2255 motion, he signed a statement certifying, under penalty of perjury, that he

knowingly and voluntarily waived his right to appeal directly or via collateral

attack, specifically through a § 2255 motion, and that he had fully discussed the

consequences of his plea with his counsel. In addition, the district court, at the

plea colloquy, questioned M r. Aparicio extensively under oath about whether he

was entering the agreement voluntarily and whether he understood the

ramifications of his plea and the agreed-upon waiver conditions. As the district

court correctly noted, “M r. Aparicio’s answ ers left no doubt . . . that M r. Aparicio

fully understood what he was doing and that his attorney had thoroughly, and

effectively, counseled him with regard to the consequences of his plea and his

plea agreement.” Under such circumstances, we can find no grounds to suggest

that M r. Aparicio has raised even a colorable argument that his plea was tainted

by constitutionally ineffective assistance of counsel. Because M r. Aparicio has

effectively waived his right to attack his conviction collaterally under 28 U.S.C. §

2255 as to all other matters, we need not consider whether his other arguments

m erit issuance of C OA .

                                          -4-
      Even construing liberally M r. Aparicio’s opening brief and application for

COA, he raises no debatable argument that his waiver of the right to collateral

attack was involuntary and so constituted ineffective assistance of counsel.

Pursuant to the terms of his plea agreement, he has w aived the right to pursue all

other claims under § 2255. Thus, because M r. Aparicio has failed to make a

“substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), we DENY his application for a certificate of appealability and

DISM ISS his appeal.



                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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