                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 11, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                       No. 06-3065
          v.                                          District of Kansas
 JO RG E RIO S-G A RC IA ,                       (D.C. No. 05-CV-3255-KHV)

               Defendant-Appellant.



                                      OR DER *


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


      Jorge Rios-Garcia, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B). Because we conclude that M r. Rios-Garcia has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      On December 4, 2002, a grand jury indicted M r. Rios-Garcia on one count

of conspiracy to distribute more than 5 kilograms of cocaine, more than 500



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
grams of methamphetamine, and more than 50 kilograms of marijuana in violation

of 21 U.S.C. § 846. Thereafter, the government properly filed a notice of prior

conviction under 21 U.S.C. § 851, which served to raise the statutory mandatory

minimum sentence on the charge to twenty years. M r. Rios-Garcia made no

objections to the § 851 filing. On January 14, 2004, M r. Rios-Garcia pleaded

guilty, signing a plea agreement that waived his right both to direct appeal and to

collateral attack under 28 U.S.C. § 2255. Five months later, the district court

sentenced M r. Rios-Garcia to twenty years imprisonment. He did not file a direct

appeal, but on June 9, 2005, he moved to vacate his sentence under § 2255. The

District Court overruled that motion and denied a subsequent motion for a COA.

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

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

make such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. M cDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation

marks omitted).

      Petitioner makes no substantial showing of constitutional error. In his

district court § 2255 filing, M r. Rios-G arcia made four arguments: (1) that his

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counsel was ineffective because the attorney threatened M r. Rios-Garcia and

failed to advise him of the right to appeal the § 851 information; (2) that his plea

was involuntary; (3) that his sentence enhancement for being a “manager” under

the United States Sentencing Guidelines § 3B1.1(b) violated Blakely v.

Washington, 542 U.S. 296 (2004); and (4) that the Court’s doubling of the

statutory minimum sentence under 21 U.S.C. § 851 by the use of a prior

conviction more than ten years old violated Blakely and Shephard v. United

States, 544 U.S. 13 (2005). W e find that all of these claims are barred by his

waiver of the right to appeal or collaterally attack his sentence.

      “A defendant’s knowing and voluntary waiver of the statutory right to

appeal and to collaterally attack his sentence is generally enforceable.” United

States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003) (internal quotation

marks omitted). W e determine w hether such waivers are enforceable under a

three-prong analysis: (1) whether the disputed appeal falls within the scope of the

waiver, (2) whether the defendant knowingly and voluntarily waived his appellate

rights, and (3) w hether enforcing the waiver w ill result in a miscarriage of justice.

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). Because

the elements of that test are not satisfied here, the waiver is valid and collateral

attack is impermissible.

      The first prong of the Hahn analysis is not in dispute. M r. Rios-Garcia’s

appellate waiver includes language “voluntarily waiv[ing] any right to appeal or

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collaterally attack” his sentence, “including, but not limited to, a motion brought

under Title 28, U.S.C. § 2255.” R. Vol. 1, Doc. 211, at 5-6. Even after

recognizing our responsibility to resolve any ambiguities in favor of the

defendant, we find that the plain language of the agreement clearly precludes the

type of appeal presented here. Hahn, 359 F.3d at 1343.

      Under the second prong, the defendant must show that his plea agreement

was not knowing and voluntary. To determine voluntariness, we look to the

language of the plea agreement and the Rule 11 colloquy. Id. at 1325. In the

agreement itself, the defendant averred that he had read and understood the plea

agreement, and that he was entering into it freely and voluntarily. He said the

same at the colloquy.

      M r. Rios-Garcia claims, however, that the plea as a whole — including the

waiver — is invalid because he did not understand several elements of the plea:

the § 851 enhancement and the elements of the offense to which he was pleading

guilty. As to the § 851 enhancement, M r. Rios-G arcia registered no objection to

the § 851 notice when it was filed, nor does he now claim that the information

contained in it is inaccurate. An affidavit from M r. Rios-Garcia’s trial counsel

states that he explained several times the meaning of the § 851 notice, and that it

would lead to a twenty-year mandatory minimum sentence. The plea petition,

which the defendant also signed, acknowledged that M r. Rios-Garcia would be




                                         -4-
facing a mandatory minimum sentence of twenty years imprisonment, a sentence

triggered by the § 851 enhancement.

      M r. Rios-Garcia’s claim that he was not informed of the elements of the

offenses to which he was pleading is equally meritless. The plea agreement itself

laid out the elements of the charge, namely “conspiracy to distribute more than

five kilograms of a mixture or substance containing a detectable amount of

cocaine, a Schedule II controlled substance, and more than fifty kilograms of

marijuana, a Schedule I controlled substance.” R. Vol. 1., Doc. 211, at 1. M r.

Rios-G arcia’s belated disavowal of knowledge and understanding of the plea is

unfounded.

      Finally, we must determine whether enforcing the waiver will result in a

miscarriage of justice. W e have identified four such occasions: “[1] where the

district court relied on an impermissible factor such as race, [2] where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4]

where the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327. Factors one,

three, and four are inapposite here. M r. Rios-Garcia does allege the second

prong, ineffective assistance of counsel. To show ineffective assistance,

appellant must demonstrate (1) that the performance of counsel was deficient, and

(2) a reasonable probability that, but for counsel’s errors, the result of the




                                          -5-
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

694 (1984).

      Petitioner’s § 2255 petition alleges three errors by counsel, none of which

is sufficient to meet the Strickland standard. First, M r. Rios-Garcia argues that

counsel was deficient in trial preparations, because his attorney relied on

summaries of wiretapped conversations rather than listening to the conversations

themselves. He alleges no prejudice stemming from that behavior, however, and

thus we cannot find it to be a Sixth Amendment violation. Second, he alleges that

he was pressured into pleading guilty. He claims that his attorney constantly told

him in a threatening tone, “If you don’t sign the plea agreement, you have to go to

trial!” and made frequent mention of the possibility of a life sentence. Such

statements cannot be considered threats, however, given that they are both

truthful and beyond defense counsel’s ability to influence. If counsel was trying

to impress on M r. Rios-Garcia the gravity of the decision that faced him, so much

the better. Third, petitioner alleges that his counsel was deficient in failing to

inform him that he could appeal the § 851 information. The Supreme Court held

in Roe v. Flores-Ortega, 528 U.S. 470 (2000), that counsel must inform a

defendant of his right to appeal only if counsel has “reason to think either (1) that

a rational defendant would w ant to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.” Id. at 480. Counsel

                                          -6-
apparently did not inform M r. Rios-Garcia of his right to appeal the § 851

information, but petitioner gave no indication that he wished to appeal, and

counsel had no reason to think there were nonfrivolous grounds for doing so.

M oreover, M r. Rios-Garcia even now makes no claims that the information

contained in the § 851 information is inaccurate. H e does claim that his

conviction should not have been used for § 851 purposes because it is more than

ten years old, but such an argument is not supported by the plain language of §

851(a), and therefore we can find no prejudice. W e thus find no ineffective

assistance of counsel, no miscarriage of justice, and no reason to set aside

petitioner’s waiver of appeal and collateral attack.

      There is no room for “reasonable jurists [to] debate” whether the § 2255

petition and the COA should have been resolved in a different manner. Slack,

529 U.S. at 483–84. Accordingly, we DENY M r. Rios-Garcia’s request for a

COA and DISM ISS this appeal.

      Petitioner also moves to proceed in form a pauperis. The district court

denied the motion without prejudice, noting that while M r. Rios-Garcia met the

financial criteria for the motion, he had not provided a proper accounting of the

issues to be presented on appeal. M r. Rios-Garcia has since remedied that flaw ,

and we find his claims to be in good faith. Fed. R. App. P. 24(a)(4)(B). His




                                         -7-
motion to proceed in form a pauperis is GR ANTED .

                                            Entered for the Court,

                                            M ichael W . M cConnell
                                            Circuit Judge




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