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

                                                                            OCT 26 2001
                 UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                 TENTH CIRCUIT                                   Clerk




 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 01-2099
 v.                                                 (D.C. No. CIV-00-1051)
                                                        (New Mexico)
 JAIME MENDEZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.


      Jaime Mendez, a pro se federal prisoner, moves this court for a certificate

of appealability in order to appeal the district court’s denial of his request for

relief under 28 U.S.C. § 2255. We deny his request and dismiss the appeal.


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      Mr. Mendez was indicted for possessing with intent to distribute more than

500 grams of methamphetamine. After he filed a motion to suppress, the district

court held a hearing on the matter and denied the motion. Mr. Mendez

subsequently pled guilty pursuant to an unconditional plea agreement which

contained a non-binding stipulation that Mr. Mendez was entitled to a reduction

in his sentence under the “safety valve” provision of 18 U.S.C. §3553 (f). Mr.

Mendez’ sentencing hearing was continued due to a dispute over whether he was

in fact entitled to treatment under this provision, which does not apply if a

defendant has more than one criminal history point. See id. §3553 (f)(1). When

the sentencing proceeding was resumed, the court concluded that Mr. Mendez had

four criminal history points and was therefore not eligible for a safety valve

reduction. Mr. Mendez was sentenced to 120 months incarceration and five years

of supervised release. Although he subsequently filed a direct appeal, this court

dismissed it upon his motion.

      Mr. Mendez raises the following issues in his section 2255 motion. He

claims that his guilty plea was involuntary, that the district court erred in denying

his motion to suppress, and that his counsel was ineffective in advising him to

enter the plea and to waive his appeal. The matter was referred to a magistrate

judge, who recommended that relief be denied. After Mr. Mendez filed

objections to the magistrate judge’s report, the district court adopted the report,


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denied relief, and denied Mr. Mendez’ request for a certificate of appealability.

      Mr. Mendez’ collateral challenge to the voluntariness of his guilty plea is

procedurally defaulted by his failure to pursue the matter on direct appeal. See

Bousley v. United States, 523 U.S. 614, 621 (1998). The claim can therefore only

be raised in this proceeding if Mr. Mendez shows cause and prejudice for his

default, or that he is actually innocent. Id. at 622. He contends he can establish

cause because his counsel was ineffective in allegedly advising him to abandon

his direct appeal. As the magistrate judge pointed out, the record demonstrates

that counsel for Mr. Mendez filed a notice of appeal and designated the record,

thus preserving Mr. Mendez’ appeal rights. When Mr. Mendez signed the motion

to dismiss his appeal, he acknowledged that he knew he had a right to the appeal

and was electing instead to withdraw it. He has offered nothing to indicate that

his counsel was ineffective in any regard with respect to the dismissal.

Accordingly, he is barred from raising the voluntariness of his guilty plea.

      Even if the claim were properly before us, we would hold it without merit.

Mr. Mendez contends that his plea was involuntary because his counsel gave him

erroneous advice with respect to the availability of the safety valve provision.

The Supreme Court has held, however, that in order to successfully challenge the

voluntariness of a guilty plea on the basis of ineffectiveness of counsel, a

petitioner must show that “there is a reasonable probability that, but for counsel’s


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errors, he would not have pleaded guilty and would have instead insisted on going

to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Mr. Mendez has never stated

that he wants to have his guilty plea vacated and to go to trial. It appears from

the record that once the parties realized Mr. Mendez would not be entitled to a

safety valve reduction, his counsel asked him if he wanted to withdraw his plea

and go to trial and Mr. Mendez declined to do so. Likewise in this court he does

not seek vacation of his plea, but argues only that he should have the right to

appeal the denial of his motion to suppress. Accordingly, his challenge to the

voluntariness of his plea is without merit.

      Finally, we turn to Mr. Mendez’ argument that the district court erred in

denying his suppression motion. “Fourth Amendment violations are not

reviewable in a §2255 motion when the federal prisoner has had a full and fair

opportunity to litigate the Fourth Amendment claim at trial and present issues on

direct appeal.” United States v. Cook, 997 F.2d 1312,1317 (10th Cir. 1993). Mr.

Mendez had such an opportunity here. The district court held a hearing on the

matter at which Mr. Mendez testified, and Mr. Mendez’ attorney preserved his

right to appeal the lower court’s decision. As we have discussed above, Mr.

Mendez has presented no evidence tending to show that his attorney was

ineffective with respect to his appeal rights. Accordingly, we conclude that Mr.

Mendez was provided the requisite full and fair opportunity to raise his Fourth


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Amendment claims both in the district court and on appeal. These claims are

therefore not reviewable in this proceeding.

      For the reasons set out above, we conclude that Mr. Mendez has failed to

make a substantial showing of the denial of a constitutional right. See 28 U.S.C.

§2253(c); Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996). We therefore DENY

his motion for a certificate of appealability and DISMISS the appeal.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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