                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 11, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,
                                                     Nos. 09-3247 & 09-3248
              Plaintiff - Appellee,
                                                           (D. Kansas)
                                                 (D.C. Nos. 6:09-CV-01148-MLB
       v.
                                                     & 6:09-CV-01149-MLB
                                                    & 6:05-CR-10121-MLB-1
JORGE MEDINA-MONTES,
                                                    & 6:05-CR-10257-MLB-1)
              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      This matter is before the court on Jorge Medina-Montes’s pro se request for

a certificate of appealability (“COA”). Medina-Montes seeks a COA so he can

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

28 U.S.C. § 2253(c)(1)(B). Because Medina-Montes has not “made a substantial

showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies

his request for a COA and dismisses this appeal.

      Medina-Montes pleaded guilty, in two separate cases, to conspiracy to

distribute methamphetamine and cocaine. United States v. Medina-Montes, 283

Fed. App’x 626, 627 (10th Cir. 2008). “In each case [Medina-Montes] signed a
plea agreement, knowingly and voluntarily waiving any right to appeal or

collaterally attack any matter in connection with [his] prosecution, conviction and

sentence.” Id. (quotations omitted). Despite his waiver of appellate rights,

Medina-Montes filed an appeal challenging his sentences. Id. This court

concluded Medina-Montes’s waivers of appellate rights were knowing and

voluntary, enforced the waivers, and dismissed his appeal. Id. at 627-28.

      Medina-Montes then filed the instant consolidated § 2255 motion asserting

numerous claims of ineffective assistance of trial counsel. The district court

concluded that, with one significant exception, all of Medina-Montes’s claims of

ineffective assistance were barred by the waiver of collateral rights set out in the

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

2001) (holding that a waiver of collateral rights applies to claims of ineffective

assistance of counsel with the exception of such claims asserting ineffective

assistance rendered the plea or waiver unknowing or involuntary). The district

court rejected on the merits Medina-Montes’s claim that trial counsel’s ineffective

assistance rendered his waiver unknowing and involuntary. 1 The district court

noted the plea agreements, plea petitions, and transcripts of Median-Montes’s

guilty pleas conclusively established that Medina-Montes’s guilty pleas and


      1
       Medina-Montes baldly asserts his trial counsel should have negotiated a
conditional guilty plea rather than a plea agreement containing an appeal waiver.
There is absolutely nothing in the record to indicate the prosecution was remotely
willing to enter into such an arrangement.

                                          -2-
waivers of collateral rights were knowingly and voluntary. In so doing, the

district court quoted extensively from Medina-Montes’s plea colloquy to the

charges originating from Kansas.

      The granting of a COA is a jurisdictional prerequisite to Medina-Montes’s

appeal from the denial of his consolidated § 2255 motion. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). To be entitled to a COA, Medina-Montes 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 “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.” Id. (quotations omitted).

In evaluating whether he 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 Medina-Montes 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.

      Having undertaken a review of Medina-Montes’s appellate filings, the

district court’s order, and the entire record before this court pursuant to the

framework set out by the Supreme Court in Miller-El, we conclude Medina-

Montes is not entitled to a COA. The district court’s resolution of Medina-

                                          -3-
Montes’s consolidated § 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 Medina-Montes’s request for a COA and

DISMISSES these appeals.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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