                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
S                  UNITED STATES COURT OF APPEALS
                                                                    February 6, 2009
                                TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-3151
 v.                                                       (D. Kansas)
 ALEJANDRO SALAZAR,                         (D.C. Nos. 07-CV-02578-JWL and 04-
                                                     CR-20013-JWL-1)
              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      Defendant and appellant Alejandro Salazar, a federal prisoner appearing

pro se, seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C.



      *
        This order and judgment is not binding precedent except under the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.
§ 2253(c)(1) in order to challenge the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his sentence. Because Salazar has

failed to satisfy the standards for issuance of a COA, we deny his request and

dismiss this appeal.



                                 BACKGROUND

      On March 29, 2004, Salazar pled guilty to one count of distribution of more

than fifty grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

Salazar’s plea agreement contained the following waiver of appellate rights:

      9.     Waiver of Appeal and Collateral Attack. Except as set forth
             herein, defendant knowingly and voluntarily waives any right
             to appeal or collaterally attack any matter in connection with
             this prosecution and sentence. . . . By entering into this
             agreement, he knowingly waives any right to appeal a sentence
             imposed which is within the guideline range determined
             appropriate by the court. He also waives any right to
             challenge a sentence or the manner in which it was determined
             in any collateral attack, including, but not limited to, a motion
             brought under 28 U.S.C. § 2255 [except as limited by United
             States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)].
             . . . In other words, he waives the right to appeal the sentence
             imposed in this case except to the extent, if any, the court
             departs upwards from the applicable sentencing guideline
             range determined by the court. However, if the court
             determines the defendant’s prior conviction for involuntary
             manslaughter or either of the assault convictions arising out of
             the same vehicle accident is a crime of violence within the
             meaning of U.S.S.G. §4B1.1 and classifies him as a career
             offender, and if the defendant would not otherwise be
             classified as a career offender within the meaning of U.S.S.G.
             §4B1.1, the defendant under Fed. R. Crim. P. 11(a)(2) reserves
             his right to appellate review of that ruling.

                                         -2-
Plea Agreement at 5.

      Salazar was sentenced on August 23, 2004. The district court ruled that

Salazar was a career offender under USSG §4B1.1, based in part on the court’s

determination that Salazar’s Missouri state court conviction for driving while

intoxicated involuntary manslaughter constituted a “crime of violence” for

Guideline purposes. The court then determined that the applicable Guidelines

sentencing range was 262 to 327 months, based upon an offense level of thirty-

four and a criminal history category VI, and sentenced Salazar the 262 months.

      On direct appeal, this court vacated Salazar’s sentence and remanded for

resentencing. United States v. Salazar, 149 Fed. App’x 816 (10th Cir. Sept. 26,

2005). We upheld the determination that Salazar was a career offender under the

Guidelines, on the ground that the manslaughter conviction represented a “crime

of violence” for career offender enhancement purposes. We held, however, that

the district court had committed a non-constitutional error under United States v.

Booker, 543 U.S. 220 (2005) when it sentenced Salazar, and we accordingly

remanded for resentencing.

      On December 19, 2005, the district court again sentenced Salazar to 262

months. When Salazar attempted to appeal that decision, we dismissed his appeal

after granting the government’s motion to enforce the appeal waiver contained in

the plea agreement. United States v. Salazar, 188 Fed. App’x 787 (10th Cir.

July 14, 2006).

                                         -3-
      Salazar then filed the instant motion under § 2255, contending that his

counsel was ineffective in that (1) he entered into the guilty plea and plea

agreement based on counsel’s representation that Salazar would not be sentenced

as a career offender; and (2) his counsel at resentencing should have argued that

the case of Shepard v. United States, 544 U.S. 13 (2005), precluded application of

the career offender provisions to Salazar. The government, citing United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004), moved to enforce Salazar’s waiver of

collateral attacks on his sentence, as stated in his plea agreement. The district

court denied Salazar’s § 2255 motion, finding:

      Salazar has not established ineffective assistance of counsel relating
      to his entering into the plea agreement and waiver. Based on that
      failure, the Court concludes that Mr. Salazar’s claim falls within the
      scope of his waiver of appeal and collateral attack, that his plea and
      waiver were knowing and voluntary, and that enforcement of the
      waiver would not result in a miscarriage of justice. Therefore, under
      Hahn, Mr. Salazar’s waiver will be enforced, and this claim is
      dismissed.

Mem. and Order at 9. The court further held that Salazar’s Shepard claim also

fell within the scope of the appellate waiver and should be dismissed.

Alternately, the court held that it fails on its merits.

      Salazar filed a notice of appeal and requested that the district court issue a

COA and grant him leave to proceed on appeal in forma pauperis. The district

court denied Salazar a COA but granted him leave to proceed on appeal ifp.




                                            -4-
                                   DISCUSSION

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322

(2003). In other words, a federal prisoner may appeal from the denial of a § 2255

motion only if the district court or this court first issues a COA. 28 U.S.C.

§ 2253(c)(1). A court may issue a COA “only if the applicant has made a

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

order to make such a showing, a federal prisoner 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) (citation and internal quotation marks

omitted). Where the district court denies a habeas petition on procedural grounds,

as well as on the merits of the underlying constitutional claim, a petitioner must

show that reasonable jurists would find debatable both (1) whether the petition

states a valid claim of the denial of a constitutional right, and (2) whether the

district court was correct in its procedural ruling. Cf. Slack, 529 U.S. at 484

(holding that, where district court reached only the procedural issue, petitioner

must establish that the court’s rulings on both that issue and the merits are

reasonably debatable). “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the

                                          -5-
petitioner should be allowed to proceed further. In such a circumstance, no

appeal would be warranted.” Id. The Supreme Court has instructed courts to

resolve the procedural issue first. Id. at 485.

      Having reviewed the record, we agree with the district court that Salazar

has failed to establish that he had ineffective assistance of counsel relating to his

entering into the plea agreement and waiver. We also agree that Salazar’s waiver

of his appellate rights was knowing and voluntary, that the waiver bars Salazar’s

claims, and that enforcement of the waiver would not result in a fundamental

miscarriage of justice. See Hahn, 359 F.3d at 1325-29. The waiver in the plea

agreement accordingly precludes Salazar’s § 2255 motion. No reasonable jurist

could debate the propriety of the district court’s ruling on those issues.

      The request for a COA is denied and this appeal is dismissed.



                                   CONCLUSION

      For the foregoing reasons, the request for a COA is DENIED and the appeal

is DISMISSED **

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge

      **
         In light of our disposition regarding the appellant’s request for a
certificate of appealability, we need not address the government’s motion to
enforce the plea filed on June 25, 2008.

                                          -6-
