                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 4, 2015
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 14-5141
                                             (D.C. Nos. 4:13-CV-00630-GKF-PJC and
EVERETT LEE SUNIGA,                                  4:10-CR-00086-GKF-2)
                                                           (N.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Everett Suniga, a federal prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255

motion. We deny a COA and dismiss the appeal.




      *
        After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Because Suniga is proceeding pro se, we construe his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                            I

      Suniga pled guilty to a methamphetamine-related charge, and his sentence was

affirmed on direct appeal. United States v. Suniga, 467 F. App’x 798, 799 (10th Cir.

2012) (unpublished). As part of his plea agreement, Suniga waived the right to

collaterally attack his sentence, except by way of an ineffective assistance claim that

challenged the validity of the plea or the waiver agreement. Suniga subsequently

submitted a § 2255 motion to vacate his sentence that alleged, among other things,

ineffective assistance of counsel during the plea process. The district court

determined that Suniga’s claims were barred by his waiver, and that, even were they

not barred, Suniga failed to show that either the plea or the waiver was invalid. It

denied a COA.

                                           II

      We will grant a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, Suniga 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

      “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 the waiver.” United States v. Cockerham, 237 F.3d 1179,



                                           -2-
1187 (10th Cir. 2001). Even if we assume that Suniga’s claims fall within the

Cockerham exception, they fail to meet the requirements for relief.

       Strickland v. Washington, 466 U.S. 668 (1984), establishes that Suniga’s

ineffective assistance of counsel claim can only succeed if his counsel’s performance

fell below an objective standard of reasonableness and he suffered prejudice as a

result. Id. at 687-88, 694. Suniga offers no factual allegations indicating that his

counsel’s performance in securing a plea agreement was objectively unreasonable or

that there was a reasonable probability that the government or the court would have

accepted any alternative proposal. See United States v. Boone, 62 F.3d 323, 327

(10th Cir. 1995) (“Without any showing that . . . such plea would have been

acceptable to the court, or that the resulting sentence would have been different than

that imposed . . . all that the Defendant urges is speculation.”). He additionally

claims the district court should have scheduled an evidentiary hearing, but we see no

basis for concluding that such a hearing would have advanced his argument. Cf.

United States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (“Given the conclusory

nature of Defendant’s allegations, the district court’s denial of an evidentiary hearing

was not an abuse of discretion.”).




                                          -3-
                                   III

     We DENY a COA and DISMISS the appeal. Suniga’s motion to proceed in

forma pauperis is GRANTED.


                                    Entered for the Court


                                    Carlos F. Lucero
                                    Circuit Judge




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