                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       July 31, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



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

              Plaintiff-Appellee,                        No. 07-4015
                                                          (D. Utah)
       v.                                      (D.C. No. 1:06-CV-71-DAK and
                                                      1:00-CR-41-DAK)
TRA CY AN N SANC HEZ,

              Defendant-Appellant.



                                      OR DER


Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.


      Proceeding pro se, Tracy Ann Sanchez seeks to appeal the district court’s

denial of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her

sentence. The matter is before this court on Sanchez’s request for a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). Because Sanchez has not “made a substantial showing of

the denial of a constitutional right,” this court denies her request for a COA and

dismisses this appeal. Id. § 2253(c)(2).

      Sanchez pleaded guilty to engaging in a continuing criminal enterprise

related to the distribution of illegal drugs, in violation of 21 U.S.C. § 848. The
district court rejected Sanchez’s request for a downward departure for

extraordinary physical impairment, USSG § 5H1.4, and also rejected the

government’s request for an upward departure for obstruction of justice. Sanchez

was sentenced to 360 months’ imprisonment. Although the written plea

agreement contained a waiver of Sanchez’s right to directly appeal or collaterally

attack her conviction and sentence, she filed a direct appeal with this court.

United States v. Sanchez, 118 Fed. App’x 480 (10th Cir. 2004) (unpublished

disposition). Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and the government did not submit a brief. This court concluded the

claims Sanchez sought to pursue were frivolous and refused to consider her

allegations of ineffective assistance. Sanchez, 118 Fed. App’x at 483; United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective

assistance of counsel claims should be brought in collateral proceedings, not on

direct appeal. Such claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.”). The Supreme Court summarily

vacated and remanded the appeal in light of United States v. Booker, 543 U.S. 220

(2005). On remand, the government filed a motion seeking to enforce the

appellate waiver in the plea agreement. United States v. Sanchez, 161 Fed. App’x

778, 779 (10th Cir. 2006) (unpublished disposition). This court granted the

motion, concluding enforcement of the waiver would not result in a miscarriage




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of justice. Id. at 780-82; United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.

2004) (en banc).

      Sanchez filed the instant § 2255 motion on June 22, 2006, asserting her due

process rights w ere violated at her sentencing hearing when the government, in

opposition to her request for a downward departure, misrepresented to the court

that she would receive appropriate medical care during her imprisonment.

According to Sanchez, she has instead received inadequate medical care and her

medical condition has deteriorated significantly. The district court enforced the

waiver of Sanchez’s right to collaterally attack her sentence or the manner in

which it was determined and dismissed Sanchez’s § 2255 motion. 1

      To be entitled to a COA, Sanchez must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, she must demonstrate “that reasonable jurists could debate w hether (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.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Sanchez has satisfied her burden, this court



      1
        The district court also suggested that many of Sanchez’s claims could be
construed as civil rights claims which must be brought in an action pursuant to 42
U.S.C. § 1983. Because Sanchez is incarcerated in a federal facility, any such
civil claims for inadequate medical care must be brought in a Bivens action. See
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971).

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undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of her claims. Id. at 338. Although Sanchez need

not demonstrate her appeal will succeed to be entitled to a COA, she must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Sanchez’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framew ork set out by the Supreme Court in M iller-El, this court

concludes she is not entitled to a COA. The district court’s resolution of

Sanchez’s § 2255 motion is not reasonably subject to debate and the issues she

seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court denies Sanchez’s request for a COA and dismisses this

appeal. Sanchez’s motion for expedited relief is denied as moot.

                                        Entered for the Court
                                        Elisabeth A . Shumaker, Clerk



                                        By:
                                                Deputy Clerk




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