                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 2 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 02-2263
v.
                                                  (District of New Mexico)
                                                 (D.C. No. CIV-02-709 JC)
VICTOR DANIEL CHAVARRIA-
AHUMADA,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and 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.
      This matter is before the court on Victor Daniel Chavarria-Ahumada’s pro

se request for a certificate of appealability (“COA”). Chavarria-Ahumada seeks a

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

motion. See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken

from a final order denying a § 2255 motion unless the movant first obtains a

COA). Because Chavarria-Ahumada 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 the appeal.

      Chavarria-Ahumada pleaded guilty to illegally reentering the United States

after having been previously deported following conviction for an aggravated

felony; he was sentenced to a term of imprisonment of fifty-seven months. See 8

U.S.C. § 1326(a), (b). His plea agreement contained a waiver of his right to

appeal or collaterally attack his conviction. Nevertheless, Chavarria-Ahumada

filed the instant § 2255 motion alleging that his counsel was ineffective and that

his guilty plea was not knowing and voluntary. In essence, Chavarria-Ahumada

argued that his attorney had misled him into signing a plea agreement which

bargained away his right to appeal or collaterally attack his conviction in

exchange for sentence reduction that he would have received anyway. In denying

relief, the district court noted that Chavarria-Ahumada’s motion was defeated by

his own allegations. In particular, Chavarria-Ahumada conceded in his pleadings


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that he would have pleaded guilty even if he had not been “induced” by his

counsel to sign the plea agreement and did not assert that his sentence would have

been further reduced if he had not signed the plea agreement.

      On October 17, 2002, Chavarria-Ahumada filed a request for a COA with

this court (the “October 17th Request”). The October 17th Request sought a COA

on the same issues raised before the district court. Shortly thereafter, this court

notified Chavarria-Ahumada that the October 17th Request did not conform with

court rules because it was not submitted on the form mandated by this court. See

10th Cir. R. 22.1(A) (providing that a request for a COA must be made on the

form provided by the court). When Chavarria-Ahumada eventually filed a

conforming request for a COA, he specifically noted that he did not seek a COA

on the issues raised before the district court but, instead, sought to raise an

entirely new issue 1: whether § 1326(b) is unconstitutional in light of the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).


      1
       In his most recent request for a COA, Chavarria-Ahumada indicated as
follows:
             In as I have been allowed to submit an additional petition for
      certificate of appealability, I now wish to take this opportunity to
      submit an application which is completely different from the petition
      I submitted earlier.
             In reviewing [the October 17th Request], I note it is a motion
      which has no merit in the law. I was assisted by what is called a
      “jail-house lawyer” or rather someone who does not fully understand
      the law. My intent was to reduce my Federal sentence which I have
      always felt excessive.

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      To be entitled to a COA, Chavarria-Ahumada must 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 “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 v. Cockrell, 123 S. Ct.

1029, 1039 (2003) (quotations omitted). In deciding whether Chavarria-Ahumada

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

consideration of the [legal] framework” applicable to each of his claims. Id. at

1040. Although Chavarria-Ahumada need not demonstrate that 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.

      In light of the standards set out above, it is clear that Chavarria-Ahumada is

not entitled to a COA. First, none of the issues presented in Chavarria-

Ahumada’s application for a COA were raised in the district court. This court

generally does not review issues that were not raised in the district court. Walker

v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). Second, Chavarria-

Ahumada’s plea agreement contained a waiver of his right to collaterally

challenge his conviction. See United States v. Cockerham, 237 F.3d 1179, 1183

(10th Cir. 2001) (holding that a waiver of collateral attack rights in a plea


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agreement will be enforced where both the waiver and the plea are knowingly and

voluntarily made). As Chavarria-Ahumada has conceded in his request for a COA

that his plea agreement is knowing and voluntary, this court will enforce his

waiver of rights to collaterally attack his conviction. Finally, it is absolutely clear

that Chavarria-Ahumada’s claims relating to Apprendi are meritless. United

States v. Mora, 293 F.3d 1213, 1219 (10th Cir.) (“Apprendi is not a watershed

decision and hence is not retroactively applicable to initial habeas petitions.”),

cert. denied, 123 S. Ct. 388 (2002); United States v. Martinez-Villalva, 232 F.3d

1329, 1332 (10th Cir. 2000) (Supreme Court’s holding in Almendarez-Torres v.

United States, 523 U.S. 224 (1998) that § 1326(b) sets out sentencing

enhancement rather than element of aggravated crime is unaffected by Apprendi).

      For those reasons set out above, Chavarria-Ahumada’s request for a COA is

DENIED. This appeal is hereby DISMISSED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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