                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             August 6, 2010
                                    TENTH CIRCUIT
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff–Appellee,
                                                              No. 09-4210
 v.                                                (D.C. Nos. 1:08-CV-00146-DS and
                                                         1:06-CR-00118-DS-3)
 JUAN AYALA-GONZALEZ,                                          (D. Utah)

              Defendant–Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


       Juan Ayala-Gonzalez (“Ayala”) requests a certificate of appealability (“COA”) to

appeal the district court’s denial of his 28 U.S.C. § 2255 habeas petition. Exercising

jurisdiction under §§ 1291 and 2253, we deny a COA and dismiss the appeal.

       In 2007, Ayala pled guilty to one count of possession with intent to distribute 500

grams or more of a substance containing a detectable amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was sentenced to 135 months’

imprisonment, followed by five years of supervised release. In December 2008, Ayala

filed a § 2255 petition claiming his counsel was ineffective for failing to challenge the
       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
trial court’s jurisdiction to impose a sentence based on drug quantities higher than those

amounts charged in Ayala’s indictment.

       The district court denied Ayala’s petition on two grounds. First, it noted that the

indictment charged Ayala “with distribut[ing] 500 grams or more of a . . . substance

containing a detectable amount of methamphetamine” (emphasis added). This language

permitted the trial court to sentence Ayala based on drug quantities exceeding 500 grams

of methamphetamine. Second, the district court determined that “handwritten changes to

the Statement in Advance of Plea”—changes that were initialed by Ayala and his

attorney—clearly indicated that Ayala “knew that he was pleading guilty to possession

and distribution of 1,771 grams of methamphetamine.” On appeal, Ayala argues that the

district court’s reliance on the Statement in Advance of Plea was improper because he

cannot read or understand English and there was no evidence that the statement had been

translated by an interpreter.

       Because he did not obtain a COA from the district court, Ayala may not appeal the

denial of his habeas petition absent a grant of a COA by this court. § 2253(c)(1)(B). We

may issue a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). This requires Ayala to show “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted).



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       Even if Ayala’s contentions concerning the Statement in Advance of Plea are true,

the district court properly dismissed his petition. The indictment charged Ayala “with

distribut[ing] 500 grams or more of a . . . substance containing a detectable amount of

methamphetamine” (emphasis added), thus properly stating the drug quantity for which

he was sentenced. Moreover, even if the indictment had been defective, the district court

would have nonetheless possessed jurisdiction to adjudicate his case. See United States

v. Cotton, 535 U.S. 625, 630-31 (2002). Because Ayala’s argument regarding the

indictment was without merit, his counsel could not have been ineffective for failing to

raise it. See United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006).

       Accordingly, we DENY Ayala’s request for a COA and DISMISS this appeal.

We GRANT Ayala’s motion to proceed in forma pauperis.



                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




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