                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 22, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                           No. 10-3021
       v.
                                                           (D. Kansas)
                                               (D.C. Nos. 5:09-CV-04110-JAR and
INDELFONSO VAZQUEZ-MARTINEZ,
                                                     5:07-CR-40106-JAR-1)
also known as Indelfonso Vasquez-
Martinez, also known as Poncho,

              Defendant-Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      This matter is before the court on Indelfonso Vazquez-Martinez’s pro se

request for a certificate of appealability (“COA”). Vazquez-Martinez seeks a

COA so he can appeal the district court’s denial of his 28 U.S.C. § 2255 motion.

28 U.S.C. § 2253(c)(1)(B). Because Vazquez-Martinez has not “made a

substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this appeal.

      Vazquez-Martinez pleaded guilty to five counts of possession with intent to

distribute a mixture or substance containing a detectable amount of

methamphetamine. 21 U.S.C. § 841(a)(1). Vazquez-Martinez’s plea agreement
specifically stated he “knowingly and voluntarily waive[ed] any right to appeal or

collaterally attack any matter in connection with [his] prosecution, conviction and

sentence.” Nevertheless, after the district court sentenced him to a term of

imprisonment of 262 months, Vazquez-Martinez filed an appeal seeking to

challenge the district court’s calculation of his sentence. This court enforced the

waiver of appellate rights and dismissed Vazquez-Martinez’s appeal, concluding

the issues raised on appeal fell within the scope of the waiver and enforcing the

waiver would not result in a miscarriage of justice. United States v. Vazquez-

Martinez, 306 F. App’x 434, 436 (10th Cir. 2009).

      Vazquez-Martinez then filed the instant § 2255 motion in federal district

court raising six grounds for relief: (1) the district court committed “procedural

error” by considering relevant conduct in arriving at a sentence; (2) his guilty

plea was neither voluntary nor intelligent based on counsel’s misestimation of the

appropriate sentencing range; (3) counsel was ineffective for failing to appeal the

reasonableness of his sentence 1; (4) the trial court did not apply the appropriate

      1
        A review of the entire record in this case reveals this contention has no
basis in fact. Vazquez-Martinez’s counsel did indeed file a notice of appeal.
Counsel’s docketing statement indicated Vazquez-Martinez intended to challenge
the reasonableness of his sentence, particularly as it related to the use of relevant
conduct to arrive at the advisory sentencing range under the Guidelines. These
are the very sentencing issues Vazquez-Martinez now presses in his § 2255
motion. In response to the notice of appeal and defense counsel’s docketing
statement, the United States sought to enforce the appellate waiver set out in
Vazquez-Martinez’s plea agreement. Defense counsel opposed the government’s
motion to enforce, arguing the issues Vazquez-Martinez sought to raise were
                                                                        (continued...)

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statutory penalty; (5) the district court based his sentence on judicially found

facts; and (6) counsel was ineffective for failing to advise him that his plea

agreement would preclude an appeal of his sentence. The district court denied on

the merits Vazquez-Martinez’s ineffective assistance claims relating to the

validity of the plea agreement and waiver. See United States v. Cockerham, 237

F.3d 1179, 1187 (10th Cir. 2001) (holding that a plea-agreement-based waiver of

direct appeal or collateral attack 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”). In particular, the district court noted the plea

agreement and plea colloquy conclusively established Vazquez-Martinez was

informed that the plea agreement contained a waiver of appeal and collateral

attack. 2 The district court likewise noted that the plea agreement established

      1
       (...continued)
outside the scope of the waiver or, alternatively, enforcement of the waiver would
amount to a miscarriage of justice. As noted above, this court rejected those
arguments and enforced Vazquez-Martinez’s waiver of appellate rights. United
States v. Vazquez-Martinez, 306 F. App’x 434, 436 (10th Cir. 2009). Thus,
Vazquez-Martinez’s assertion counsel failed to challenge on direct appeal the
reasonableness of his sentence is utterly inconsistent with the record.
      2
       Paragraph nine of the plea agreement provided as follows:
             Waiver of Appeal and Collateral Attack.
      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. The defendant is aware that Title 18,
      U.S.C. § 3742 affords a defendant the right to appeal the conviction
      and sentence imposed. By entering into this agreement, the
      defendant knowingly waives any right to appeal a sentence imposed
                                                                      (continued...)

                                          -3-
Vazquez-Martinez was informed he faced a minimum sentence of five years and a

maximum sentence of forty years. In the petition to enter a guilty plea, Vazquez-

Martinez indicated he understood he was not guaranteed any leniency in exchange

for his guilty plea and was “prepared to accept any punishment permitted by law

which the Court sees fit to impose.” In light of these “solemn declarations in

open court,” the district court concluded Vazquez-Martinez’s claims of

ineffective assistance were without merit. Having so concluded, the district court

ruled the remainder of the claims set out in the § 2255 motion were subject to

Vazquez-Martinez’s waiver of collateral attack.

      The granting of a COA is a jurisdictional prerequisite to Vazquez-

Martinez’s appeal from the denial of his § 2255 motion. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). To be entitled to a COA, Vazquez-Martinez must


      2
        (...continued)
       which is within the guideline range determined appropriate by the
       court. The defendant also waives any right to challenge a sentence
       or otherwise attempt to modify or change his sentence or manner in
       which it was determined in any collateral attack, including, but not
       limited to, a motion brought under Title 28, U.S.C. § 2255 [except as
       limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th
       Cir. 2001)], a motion brought under Title 18, U.S.C. § 3582(c)(2),
       and a motion brought under Fed. Rule of Civ. Pro. 60(b). In other
       words, the defendant waives the right to appeal the sentence imposed
       in this case except to the extent, if any, the court departs upwards
       from the applicable sentencing guideline range determined by the
       court. . . .
Likewise, when during the plea colloquy the district court asked Vazquez-
Martinez if he understood he was “waiving or giving up [his] right to appeal from
the prosecution, conviction, or sentence in this case,” he responded affirmatively.

                                         -4-
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make the requisite showing, he must demonstrate “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.” Id. (quotations omitted).

When a district court dismisses a § 2255 motion on procedural grounds, a movant

is entitled to a COA only if he shows both that reasonable jurists would find it

debatable whether he has stated a valid constitutional claim and debatable

whether the district court’s procedural ruling is correct. Slack v. McDaniel, 529

U.S. 474, 484-85 (2000). In evaluating whether Vazquez-Martinez has satisfied

his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. Miller-

El, 537 U.S. at 338. Although Vazquez-Martinez need not demonstrate his appeal

will succeed to be entitled to a COA, he must “prove something more than the

absence of frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Vazquez-Martinez’s appellate filings, the

district court’s order, and the entire record pursuant to the framework set out by

the Supreme Court in Miller-El, we conclude Vazquez-Martinez is not entitled to

a COA. The district court’s resolution of Vazquez-Martinez’s § 2255 motion is

not reasonably subject to debate and the issues he seeks to raise on appeal are not




                                          -5-
adequate to deserve further proceedings. Accordingly, this court DENIES his

request for a COA and DISMISSES this appeal.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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