                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      August 4, 2008
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 08-4052
                                                          (D. Utah)
 v.                                           (D.C. No. 1:07-CV-00064-TC and
                                                   1:03-CR-00062-TC-12)
 ISRAEL GOMEZ-ASTORGA,

              Defendant - Appellant.


                                       ORDER


Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.


      Israel Gomez-Astorga, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his

Writ of Habeas Corpus petition pursuant to 28 U.S.C. § 2255. He has also filed a

motion to proceed in forma pauperis (“IFP”). We deny the application for COA,

deny the motion to proceed IFP, and dismiss the matter.

                                I. BACKGROUND

      Mr. Gomez-Astorga is in the custody of the United States, having pleaded

guilty to possessing 500 grams of methamphetamine with intent to distribute. The

court sentenced Mr. Gomez-Astorga to 188 months’ imprisonment, after which he

will be deported to Mexico.
      Mr. Gomez-Astorga was initially indicted as one of fourteen co-defendants

in a conspiracy case involving multiple counts of drug and immigration-related

offenses. He was only named in one count – possession with intent to distribute

500 grams of a mixture or substance containing methamphetamine, in violation of

21 U.S.C. § 841(b)(1)(A). Mr. Gomez-Astorga entered a plea of guilty pursuant

to a plea agreement in which he waived his rights to a direct appeal and to

collateral attack of his sentence, including under § 2255. The government agreed

that in exchange it would recommend he receive a downward departure from the

recommended Guidelines range based on his acceptance of responsibility, his

playing a minor role in the operation, and his truthfully providing information.

However, before Mr. Gomez-Astorga’s sentencing hearing, the Probation Officer

submitted an amended presentence report (“PSR”) indicating that since Mr.

Gomez-Astorga entered his plea, the government had received additional

information from a confidential informant indicating that Mr. Gomez-Astorga

played a larger role in the conspiracy than he had previously admitted. As a

result, the new PSR withdrew the prior sentencing recommendation and instead

recommended a three offense level adjustment based on his playing an

aggravating role as manager or supervisor. The government later adopted the

PSR’s conclusions.

      The district court held an in camera hearing to address this change of

position on the part of the government. While Mr. Gomez-Astorga was not

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present, his counsel was. The court instructed the parties to brief the new issues,

and advised Mr. Gomez-Astorga’s attorney that it would be amenable to a motion

to change his plea.

      The sentencing hearing took place roughly one month later. During that

hearing, Mr. Gomez-Astorga’s counsel stated that the district judge had indicated

he would look favorably upon a motion to withdraw the plea, but that “[i]t was

our election, your honor, not to withdraw that plea, and it is still our election not

to withdraw the plea . . . .” Sentencing Tr., at 6-7. At the conclusion of the

hearing, the court found that Mr. Gomez-Astorga was not entitled to a reduction

for playing a minor role, for acceptance of responsibility, or for truthfully

providing information so as to qualify for the safety valve provision. However,

the court rejected the government’s position that Mr. Gomez-Astorga played an

aggravating role in the offense. The court ultimately sentenced Mr. Gomez-

Astorga to 188 months’ imprisonment – the low end of the Guidelines range.

      Mr. Gomez-Astorga timely appealed, and now argues that he is entitled to

habeas relief on four federal constitutional grounds: (1) his counsel was

ineffective because counsel did not argue that the government had breached the

plea agreement; (2) his sentence violates the Fifth Amendment because the court

did not know it had discretion to depart from the Sentencing Guidelines; (3) his

due process and Sixth Amendment rights were violated because his sentence was

increased based on facts not charged in the indictment, denying him notice and

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the right to a jury trial; and (4) the use of hearsay at the sentencing hearing with

no chance to cross-examine violated his right to a jury trial and his counsel was

ineffective by failing to cross-examine the confidential informant who had

provided the hearsay. The district court denied Mr. Gomez-Astorga relief on all

four claims. He timely appealed, and filed an application for a COA and a motion

to proceed IFP.

                                  II. DISCUSSION

      Mr. Gomez-Astorga must obtain a COA in order to challenge the district

court’s dismissal of his habeas petition. See Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). In order to obtain a COA, Mr. Gomez-Astorga must make “a

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

2253(c)(2). He may make this showing by demonstrating 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 were adequate to

deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal

quotation marks omitted). “[A] claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the case has received

full consideration, that [the] petitioner will not prevail.” Id. at 338.

      The district court found that Mr. Gomez-Astorga waived his right to

challenge his sentence under § 2255 on all four grounds. When a district court

denies a habeas petition on procedural grounds a COA should issue only if

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reasonable jurists would find it debatable both that “the petition states a valid

claim of the denial of a constitutional right” and “the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because

Mr. Gomez-Astorga proceeds pro se, we construe his pleadings liberally. Cannon

v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).

A. Waiver – Grounds Two, Three, and Four

      For substantially the same reasons as the district court, we hold that Mr.

Gomez-Astorga waived Grounds Two and Three of his motion – that the court

erred by not knowing it had discretion to depart from the Guidelines and that his

sentence was unconstitutionally increased based on facts not charged in the

indictment. “[A] waiver of collateral attack rights brought under § 2255 is

generally enforceable where the waiver 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). We agree

with the district court that Mr. Gomez-Astorga waived Grounds Two and Three

by knowingly and voluntarily signing the plea agreement.

      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 waiver.” Id. at 1187. Both Grounds

One and Four of Mr. Gomez-Astorga’s petition involve ineffective assistance

claims, so in order to determine if those two grounds are waived, we must

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determine whether they challenge the validity of the plea or waiver. See id.

      As did the district court, we will first address Ground Four, which is

composed of two parts: (a) the use of hearsay at the sentencing hearing with no

chance to cross-examine violated Mr. Gomez-Astorga’s right to a jury trial and

(b) his counsel was ineffective by failing to cross-examine the confidential

informant who had provided the hearsay. Because Mr. Gomez-Astorga does not

claim that Ground 4(a) (the use of hearsay at the sentencing hearing with no

chance to cross-examine) was caused by ineffective assistance of counsel, we

agree with the district court that the first half of Ground Four is waived. Mr.

Gomez-Astorga does assert ineffective assistance of counsel in the second half of

Ground Four. He argues specifically that his counsel rendered deficient

performance by failing to call the confidential informant for cross-examination at

the sentencing hearing. Although we have doubts about the merit of this

contention, we need not reach it since, as the district noted, “Mr. Gomez-

Astorga’s counsel’s failure to force the informant to testify did not ‘taint[] the

voluntariness of the plea or the waiver agreement itself.’” Rec., doc. 7, at 7 (Dist.

Ct. order) (quoting Cockerham, 237 F.3d at 1184) (internal quotation marks

omitted). Even after Mr. Gomez-Astorga was told that the FBI agent would

testify as to what the confidential informant had told him, Mr. Gomez-Astorga did

not withdraw his guilty plea, and did not cite the ability to call the informant for

cross-examination as a condition of not withdrawing. Because the failure to

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cross-examine the witness did not challenge “the validity of the plea or the

waiver,” Cockerham, 237 F.3d at 1187, we agree with the district court that Mr.

Gomez-Astorga waived the right to appeal on the second part of Ground Four.



B.   Ground One – Ineffective Assistance of Counsel

      This leaves only Ground One – Mr. Gomez-Astorga’s claim that his counsel

was ineffective by failing to argue at sentencing that the government had

breached the plea agreement by not honoring its promise of certain downward

adjustments to his base offense level. The district court held that Mr. Gomez-

Astorga waived this claim when his counsel refused to withdraw his plea at

sentencing, even after hearing the government’s new position. The district court

may have erred in concluding that Mr. Gomez-Astorga waived his right to claim

ineffective assistance of counsel; indeed, the government took the contrary

position in its response to Mr. Gomez-Astorga’s petition. Rec. doc. 5, at 10 n.2

(“The appeal waiver is inapplicable to petitioner’s Ground 1, in which he alleges

ineffective assistance of counsel in relation to an alleged breach of the plea

agreement by the United States.”) (citing United States v. Tilghman, 211 Fed.

Appx. 778, 781 (10th Cir. 2007) (unpublished)). Again, “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

waiver.” Cockerham, 237 F.3d at 1187. Whatever its merits, this argument

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regarding Mr. Gomez-Astorga’s counsel’s effectiveness does challenge the

validity of the plea, and therefore it is not waived.

      However, we agree with the district court (which also analyzed the merits

of Mr. Gomez-Astorga’s ineffective assistance claim) that Ground One has no

merit. To demonstrate ineffective assistance of counsel, Mr. Gomez-Astorga

must show (1) “that counsel’s representation fell below an objective standard of

reasonableness,” and (2) “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Generally,

“[i]f the government reneges [on a plea agreement], the defendant may seek to

withdraw the plea.” United States v. Espinosa, 449 F.3d 1301, 1306 (10th Cir.

2006). Here, when the government rescinded its offer of recommending a

downward departure upon learning more about the extent of Mr. Gomez-Astorga’s

involvement in the conspiracy, a fact which Mr. Gomez-Astorga considered a

breach, he did not seek to withdraw the plea. Indeed, as detailed above, in the

pre-sentencing in camera hearing, the sentencing court both mentioned the

possibility and suggested that he would look upon such a withdrawal favorably.

Yet, when sentencing occurred nearly a month later, Mr. Gomez-Astorga (through

his counsel) declined to withdraw the plea. Mr. Gomez-Astorga, though given the

opportunity to address the court directly, did not call into question his counsel’s

representations of his intentions.

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      “[S]trategic choices made after thorough investigation of the law and facts

relevant to plausible options are virtually unchallengable.” Strickland, 466 U.S.

at 690. Mr. Gomez-Astorga had ample opportunity to withdraw his plea, knowing

that the government was not going to fulfill the initial plea agreement, yet he did

not decide to take the chances that would come along with a trial, nor did he

reopen negotiations. Rather, he declined to withdraw his plea. Considering this

history, his counsel’s strategic decision in not arguing at the sentencing hearing

that the government had breached the agreement was objectively reasonable.

Therefore, we agree with the district court’s denial of relief to Mr. Gomez-

Astorga on Ground One.

                                III.   CONCLUSION

      Because reasonable jurists could not debate whether the petition should

have been resolved in a different manner, see Miller-El v. Cockrell, 537 U.S. at

336, we DENY Mr. Gomez-Astorga’s application for a COA, DENY his motion to

proceed IFP, and DISMISS the matter.



                                              Entered for the Court,




                                              ELISABETH A. SHUMAKER, Clerk




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