                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      February 8, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                         No. 06-4166
       v.                                                   D. Utah
 ED UARD O M OCTEZU M A-SALINAS,                  (D.C. No. 2:06-CV-424-TC)

              Defendant-Appellant.



                                     OR DER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Petitioner, Eduardo M octezuma-Salinas, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). Pursuant to the terms of a plea

agreement, M octezuma-Salinas pleaded guilty to one count of distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1). M octezuma-Salinas was

sentenced to eighty-seven months’ incarceration and three years’ supervised

release. The plea agreement contained the following provision relating to

M octezuma-Salinas’ right to file a collateral challenge: “I also knowingly,

voluntarily and expressly waive my right to challenge my sentence, and 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.”

      M octezuma-Salinas filed the instant § 2255 motion on M ay 25, 2006. 1 In

the motion, M octezuma-Salinas asserted his sentence was imposed in violation of

the Sixth Amendment because his attorney provided constitutionally ineffective

assistance in the negotiation of the plea agreement. Specifically, M octezuma-

Salinas argued his counsel should have negotiated a more favorable plea

agreement that (1) did not contain a waiver of the right to challenge his sentence

in a direct appeal and (2) capped the maximum sentence he could receive at

twenty-four months. M octezuma-Salinas sought to be resentenced to a term of

twenty-four months’ incarceration or, alternatively, relief from the waiver of his

right to file a direct appeal. M octezuma-Salinas further requested “that his plea

and plea agreement not be vacated or modified in any other way.”

      The district court characterized M octezuma-Salinas’ § 2255 motion as an

attack on his sentence. The court concluded the waiver in M octezuma-Salinas’

plea agreement was valid and enforceable as to the claims raised in the motion

because M octezuma-Salinas was not challenging the validity of the plea



      1
       M octezuma-Salinas also filed a direct appeal. This court enforced a
waiver of M octezuma-Salinas’ right to bring a direct appeal challenging his
sentence and dismissed the appeal. United States v. M octezuma-Salinas, 63 Fed.
App’x 439 (10th Cir. 2003).

                                         -2-
agreement. He was, instead, claiming his counsel failed to negotiate a better plea

agreement. See United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.

2001) (“[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. Collateral attacks based on

ineffective assistance of counsel claims that are characterized as falling outside

that category are waivable.”).

      To be entitled to a COA, M octezuma-Salinas must make “a substantial

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

make the requisite showing, he 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.” M iller-El v. Cockrell, 322 U.S. 322,

336 (2003) (quotations omitted). In evaluating whether M octezuma-Salinas has

satisfied his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. Id. at

338. Although M octezuma-Salinas need not demonstrate his appeal will succeed

to be entitled to a COA, he must “prove something more than the absence of

frivolity or the existence of mere good faith.” Id.

      H aving undertaken a review of M octezuma-Salinas’ application for a COA

and appellate filings, the district court’s order, and the entire record on appeal

                                          -3-
pursuant to the framew ork set out by the Supreme Court in M iller-El, this court

concludes that M octezuma-Salinas is not entitled to a COA. The district court’s

resolution of M octezuma-Salinas’ § 2255 motion is not reasonably subject to

debate and the issues he seeks to raise on appeal are not adequate to deserve

further proceedings. Accordingly, this court denies M octezuma-Salinas’ request

for a COA and dismisses this appeal. M octezuma-Salinas’ motion to proceed in

form a pauperis on appeal is granted.

                                        ENTERED FOR THE COURT
                                        Elisabeth A . Shumaker, Clerk



                                        By:
                                               Deputy Clerk




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