                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 20, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 11-5123
 v.                                         (D.C. Nos. 07-CV-00595-TCK-FHM
                                                and 4:06-CR-00082-TCK-1)
 CAYETANO AVALOS SANCHEZ,                               (N.D. Okla.)
 a/k/a Calletano Avalos Sanchez, a/k/a
 Alberto Rivera Avalos, a/k/a Jose Luis
 Avalos Rivera, a/k/a Cholo,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Petitioner Cayetano Avalos Sanchez, a prisoner proceeding pro se, seeks to

appeal from the district court’s denial of his 28 U.S.C. § 2255 motion. United

States v. Sanchez, No. 06–CR–82–TCK, 2011 WL 3715252 (W.D. Okla. Aug. 24,

2011). Finding that Mr. Sanchez has not made a “substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a

certificate of appealability (“COA”) and dismiss his appeal.
                                    Background

      The parties are familiar with the facts, and we need not restate them here.

Briefly, Mr. Sanchez pled guilty to four counts involving possession with intent

to distribute methamphetamine and a mixture of cocaine, possession of firearms

in furtherance of drug trafficking crimes, and re-entry of a deported alien. He

was sentenced in 2006. As part of his guilty plea, Mr. Sanchez waived his right

to appeal or collaterally attack his sentence. The district court determined that

several claims fell within the scope of the waiver and were validly waived, but

did consider other claims (which might undercut the waiver) involving ineffective

assistance of counsel. See United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.

2004) (en banc) (per curiam). Mr. Sanchez also filed a motion to compel his

former attorney to provide his case file, which the district court denied.

      On appeal, Mr. Sanchez argues that the district court erred by (1) failing to

rule on his motion to compel production of his case file, (2) failing to address an

argument relating to sentencing under 18 U.S.C. § 924(c), and (3) failing to cite

to record evidence in discussing Mr. Sanchez’s plea.



                                     Discussion

A.    Failure to Rule on Motion to Compel

      Mr. Sanchez first argues that the district court erred by failing to rule on

his motion to compel production of his case file from his former defense attorney.

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After reviewing the record, the district court determined that no purpose would be

served by compelling the case file. United States v. Sanchez, 2011 WL 3715252,

at *12. Mr. Sanchez’s claim—that, without the case file, he could not fully and

properly litigate issues—is far too general to show an abuse of discretion, and this

conclusion is not reasonably debatable.

B.    Failure to Address Argument

      Mr. Sanchez next argues that the district court erred by failing to address

an argument he made relating to sentencing for an 18 U.S.C. § 924(c) violation.

Mr. Sanchez argued generally in his petition that he received ineffective

assistance of counsel because his counsel did not appeal his sentence, then argued

more specifically in his habeas reply brief that he received ineffective assistance

because his counsel did not make an argument relating to 18 U.S.C. § 924(c). To

the extent Mr. Sanchez attempted to make his § 924(c) argument for the first time

in his habeas reply, it was not properly presented to the district court and we will

not consider it on appeal. See Thompkins v. McKune, 433 Fed. App’x 652, 660

(10th Cir. 2011) (unpublished opinion) (citing Tyler v. Mitchell, 416 F.3d 500,

504 (6th Cir. 2005) and Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir.

1997)). Alternatively, to the extent Mr. Sanchez was simply reiterating his

original argument—that his counsel was ineffective by not appealing his

sentence—the district court addressed and rejected that argument as within the

scope of the valid waiver in its opinion. United States v. Sanchez, 2011 WL

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3715252, at *5. In either case, the district court did not fail to address an

argument it should have addressed.

C.    Failure to Cite to the Record

      Mr. Sanchez finally argues that the district court erred by failing to cite to

the record in discussing his plea colloquy or Rule 11 change of plea hearing. Mr.

Sanchez has not cited any authority requiring the district court to do so and we

are not aware of any. In reality, Mr. Sanchez’s argument relates more to his

belief that the district court erred by failing to compel production of his criminal

case file, which we dealt with previously.

      We DENY Mr. Sanchez’s request for a COA and DISMISS his appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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