                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 19, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 10-6116
 v.                                                    (W.D. Oklahoma)
 JULIO C. VALLE,                              (D.C. Nos. 5:10-CV-00077-R and
                                                    5:03-CR-00145-R-8)
              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, 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 matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Julio Valle, a federal prisoner proceeding pro se, seeks a Certificate of

Appealability (“COA”) to enable him to appeal the district court’s denial of his

28 U.S.C. § 2255 motion to vacate, correct or set aside his sentence. We deny


      *
       This order is not binding precedent except under the doctrines of law of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.
Mr. Valle a COA, deny his request to proceed in forma pauperis on appeal, and

dismiss this matter.

      Mr. Valle has appeared before our court once already. United States v.

Valle, 359 Fed. Appx. 77 (10th Cir.) (unpublished) (“Valle I”), cert. denied, 130

S. Ct. 1917 (2010). As explained in that decision, Mr. Valle pled guilty to one

count of distributing 472.3 grams of cocaine and one count of reentry of a

removed alien. His plea agreement “included a waiver of his right to appeal any

matter in connection with his sentence.” Id. at 78. Despite that waiver, Mr. Valle

endeavored to appeal his sentence and the government moved to enforce the

appeal waiver pursuant to our decision in United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). In Valle I, we granted the government’s

motion and dismissed Mr. Valle’s appeal.

      Mr. Valle then brought the instant pro se 28 U.S.C. § 2255 motion, arguing

that his plea was not knowing and voluntary, that his counsel was ineffective, and

that his sentence over-represented the seriousness of his crime. The district court

held that, as our court had previously found when we granted the government’s

motion for enforcement of Mr. Valle’s plea agreement, the plea was knowing and

voluntary: “[o]n the basis of the validity of Plaintiff’s plea and Plaintiff’s

knowing and voluntary waiver of his right to collaterally challenge his guilty plea

and sentence, Defendant’s § 2255 motion of subject to dismissal.” Order at 2.




                                          -2-
      The district court went on, however, to address the merits of Mr. Valle’s

other claims regarding ineffectiveness of counsel and his sentence. The court

rejected them on their merits, finding that Mr. Valle’s counsel was not

ineffective, that Mr. Valle’s plea was valid, and that his sentence did not over-

represent the seriousness of his crime. The court accordingly denied Mr. Valle’s

§ 2255 motion to vacate, set aside or correct his sentence. Mr. Valle seeks a COA

to enable him to appeal that decision.

      “A COA is a jurisdictional prerequisite to our review.” Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322,

336 (203)). We will issue 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). For

those claims the district court denies on the merits, the petitioner must

demonstrate “that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). When the district court denies a COA on procedural grounds, the

petitioner 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

. . . whether the district court was correct in its procedural ruling.” Id.

      Having reviewed the record and the controlling law, and liberally

construing Mr. Valle’s pro se filings, we conclude that, for substantially the same

reasons set forth by the district court in its April 2, 2010, Order, Mr. Valle has not

                                           -3-
met the requirements for issuance of a COA. The district court’s analysis was

sound and well-reasoned, and we need not reiterate it.

      For the foregoing reasons, we DENY a COA and DISMISS this case. We

also DENY Mr. Valle’s request to proceed on appeal in forma pauperis.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




                                        -4-
