                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   March 3, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 10-3317
 v.                                          (D.C. Nos. 5:10-CV-04034-SAC and
                                                  5:08-CR-40020-01-SAC)
 ARMANDO OCHOA-EQUIHUA,                                   (D. Kan.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant-Appellant Armando Ochoa-Equihua, a federal inmate proceeding

pro se, seeks a certificate of appealability (“COA”) to challenge the district

court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. Mr. Ochoa-Equihua has not made “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we deny his

request for a COA and dismiss the appeal.



                                    Background

      On April 29, 2009 Mr. Ochoa-Equihua pleaded guilty to distributing 4.1

grams of actual methamphetamine. R. 16. He was sentenced to 87 months in
prison and three years of supervised release. Id. The plea agreement included a

waiver of all rights to appeal or to bring a collateral attack on his conviction or

sentence—including a motion under 18 U.S.C. § 2255. Id. at 37-38, see

also United States v. Ochoa-Equihua, Nos. 08-40020, 10-4034, 2010 WL

3924675, at *1 (D. Kan. Sept. 29, 2010) (language of the waiver). Nonetheless,

on April 2, 2010 Mr. Ochoa-Equihua filed a motion under 28 U.S.C. § 2255. R.

22. The government moved to enforce the waiver contained in the plea

agreement, see id. at 36, and the district court granted the motion. See Ochoa-

Equihua, 2010 WL 3924675, at *4.



                                      Discussion

      To appeal from the denial of his § 2255 motion, Mr. Ochoa-Equihua must

obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, he must make

“a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

Where, as here, the district court denied the § 2255 motion on procedural

grounds, the prisoner must demonstrate that “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

      As the district court correctly noted, “‘[a] waiver of collateral attack rights

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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.’” Ochoa-Equihua, 2010 WL 3924675 at *2

(quoting United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001)).

However, the waiver is invalid if it would result in a miscarriage of justice, see

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per

curiam), which occurs if (1) the district court relied on a factor such as race, (2)

the prisoner’s counsel was ineffective concerning the negotiation of the plea

agreement, (3) the sentence exceeds the statutory maximum, or (4) the waiver is

otherwise unlawful. Cockerham, 237 F.3d at 1182 (citations omitted).

      In this case, the district court found that the § 2255 waiver was expressly

stated in the plea agreement and that the waiver was knowing and voluntary.

Ochoa-Equihua, 2010 WL 3924675, at *2-3. These findings are supported by the

record and are not reasonably debatable. See R. 37-38; id. at 46 (defendant

conceding that he knowingly and voluntarily waived the right to collaterally

attack the sentence). As in the district court, Mr. Ochoa-Equihua contends that

counsel was ineffective for not obtaining a downward adjustment at sentencing

based on his minor role in distributing the drugs. Aplt. Br. at 1. The district

court recognized that this does not come within the Cockerham exception for

ineffective assistance of counsel in negotiating the plea agreement. Ochoa-

Equihua, 2010 WL 3924675, at *3. That conclusion is not reasonably debatable.

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See, e.g., Cockerham, 237 F.3d at 1187; United States v. Morrison, No. 10-3210,

2011 WL 286365, at *3 (10th Cir. Jan. 31, 2011) (unpublished) (listing cases).

      Finally, the district court concluded that to the extent Mr. Ochoa-Equihua’s

motion could be read as challenging counsel’s effectiveness in negotiating the

plea waiver, it was devoid of facts tending to prove that counsel’s performance

“fell blow an objective standard of reasonableness and that, but for counsel’s

error, the defendant would have insisted upon going to trial.” Ochoa-Equihua,

2010 WL 3924675, at *3 (internal quotation marks and citations omitted).

      Again, that conclusion is not reasonably debatable. The thrust of Mr.

Ochoa-Equihua’s argument is that he played a small role in the conspiracy and

thus should have received a sentence reduction. Aplt. Br. at 2. However, Mr.

Ochoa-Equihua’s motion is bereft of any facts suggesting this to be the case.

Absent facts tending to show that counsel’s performance was deficient, the

district court’s conclusion is not reasonably debatable.

      Accordingly, we DENY a COA and DISMISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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