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

                                                                   February 10, 2009
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                       No. 08-4204
 v.                                                        (D. Utah)
 JAIME ENRIQUE OLIVARRIA-                   (D.C. Nos. 2:08-CV-00685-DAK and
 LORA,                                            2:08-CR-00685-PGC-1)

              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      In 2006 Jaime Enrique Olivarria-Lora pleaded guilty in the United States

District Court for the District of Utah to possession of 500 grams or more of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

He filed a pro se motion under 28 U.S.C. § 2255, contending that his trial

counsel’s ineffective assistance deprived him of his right to file a direct appeal.

His memorandum in support of the motion also contended that his plea was

unlawfully induced, was involuntary, and was made without a full understanding

of the consequences; that his “trial counsel’s deficient performance rendered the

proceedings constitutionally inadequate”; and that prosecutorial misconduct

deprived him of a fair trial. R. Vol.1 at 17. The district court denied relief.
Mr. Olivarria-Lora now asks us to issue a certificate of appealability (COA). See

28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion).

We deny a COA and dismiss the appeal.

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the prisoner “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). If the motion was denied on

procedural grounds, the applicant faces a double hurdle. Not only must the

applicant make a substantial showing of the denial of a constitutional right, but he

must also show “that jurists of reason would find it debatable . . . whether the

district court was correct in its procedural ruling.” Id. “Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of a case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. Finally, “we may deny a COA if there is a plain procedural bar to

habeas relief, even though the district court did not rely on that bar.” Davis v.

Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (internal quotation marks and citation

omitted).




                                          -2-
      Our denial of a COA is based on a waiver in Mr. Olivarria-Lora’s plea

agreement. The agreement provides as follows:

            I know there is no appellate review of any lawful sentence
      imposed under a plea of guilty. I also know that unless the right to
      appeal a sentence is waived, a defendant may appeal a sentence
      imposed in violation of law or, in light of the factors listed in 18
      U.S.C. § 3553(a), the sentence is unreasonable.
            ...

            Fully understanding my limited right to appeal my sentence, as
      explained above, and in consideration of the concessions and/or
      commitments made by the United States in this plea agreement, I
      knowingly, voluntarily and expressly waive my right to appeal any
      sentence imposed on me, and the manner in which the sentence is
      determined, on any of the grounds set forth in Title 18, United States
      Code, Section 3742 or on any ground whatever, except I do not
      waive my right to appeal a sentence above the maximum penalty
      provided in the statute of conviction . . . .

            I also knowingly, voluntarily and expressly waive my right to
      challenge my conviction, my sentence, or the manner in which the
      sentence is determined, in any collateral review motion, writ or other
      procedure, including but not limited to a motion brought under Title
      28, United States Code, Section 2255.

United States v. Olivarria-Lora, No. 2:06-CR-019 PGC, N.D. Utah (Statement by

Def. in Advance of Plea of Guilty, June 14, 2006).

      Despite the waiver, Mr. Olivarria-Lora filed a notice of appeal shortly after

his sentencing. His attorney filed a brief under Anders v. California, 386 U.S.

738, 744 (1967), to which Mr. Olivarria-Lora did not respond. We dismissed the

appeal, holding under our decision in United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004) (en banc) (per curiam), that his claims on appeal were within the


                                        -3-
scope of his waiver, that the waiver was knowing and voluntary, and that no

miscarriage of justice would result from the waiver’s enforcement. See United

States v. Olivarria-Lora, 248 F. App’x 941 (10th Cir. 2007) (per curiam).

       Mr. Olivarria-Lora contends in this court (1) that his § 2255 motion is not

barred by the waiver in his plea agreement because the claims in his motion are

not encompassed by the waiver, and (2) that the waiver is invalid. We are not

persuaded.

      First, the waiver broadly prohibits any § 2255 motion challenging his

conviction or sentence. Second, although a waiver does not preclude a claim of

ineffective assistance that challenges a guilty plea or the waiver itself, see United

States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001), any challenge by

Mr. Olivarria-Lora in this respect is barred by our prior decision on direct appeal,

which upheld the validity of the waiver. Although strictly speaking we upheld

only the waiver of his right to appeal his sentence, our holding necessarily

affirmed the validity of the plea agreement as a whole; and even if a waiver of a

right to appeal could theoretically be motivated by different factors than a waiver

of the right to bring a § 2255 motion, Mr. Olivarria-Lora has presented no

evidence, or even argument, that would distinguish between the two waivers.

Finally, we note that Mr. Olivarria-Lora has not presented any evidence or

argument that enforcing the waiver in his § 2255 proceeding would result in a

miscarriage of justice as we defined it in Hahn, 359 F.3d at 1327.

                                         -4-
     No reasonable jurist could debate whether Mr. Olivarria-Lora is entitled to

relief. We therefore DENY the application for a COA and DISMISS the appeal.

We DENY Mr. Olivarria-Lora’s motion to proceed in forma pauperis on appeal.

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




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