                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 September 30, 2015
                                  TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 GUSTAVO BARRERA-ESTRADA,

          Petitioner-Appellant,
                                                        No. 15-2093
                                            (D.C. Nos. 2:14-CV-00562-RB-LAM
 v.
                                                 and 5:12-CR-02006-RB-6)
                                                          (D.N.M.)
 UNITED STATES OF AMERICA,

          Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.


      In his written plea agreement to various federal crimes, Mr. Barrera-Estrada

waived his right to appeal or collaterally attack his conviction and sentence with

one exception: he retained the right to challenge the effectiveness of his counsel

in negotiating or entering the plea or waiver. Despite the terms of the plea deal,

Mr. Barrera-Estrada soon brought a 21 U.S.C. § 2255 motion alleging that his

trial counsel was ineffective not in negotiating or entering the plea or waiver but

in failing to object to a pre-sentencing report and failing to obtain a downward

departure of his sentence. A magistrate judge and then a district judge denied Mr.


      *
         This order is not binding precedent except under the doctrines of law of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.
Barrera-Estrada’s § 2255 motion as well as his later request for a certificate of

appealability, reasoning in extensive opinions that the motion was barred by the

terms of his plea agreement. Mr. Barrera-Estrada now renews his COA request

before us, but we see in his papers nothing to suggest error in the work of the

magistrate judge or district judge and we adopt their views as our own. 28 U.S.C.

§ 2253. Further, to the extent Mr. Barrera-Estrada seeks for the first time on

appeal to challenge counsel’s performance in connection with negotiating the plea

agreement, he failed to do so before the district court and a litigant generally may

not pursue arguments in this court that he did not pursue in that one first. See

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-31 (10th Cir. 2011). The

request for a COA is denied and the appeal is dismissed.



                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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