                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS                   March 6, 2008
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                        No. 07-4147
                                                          (D. Utah)
          v.
                                             (D.C. Nos. 2:07-CV-366-DAK and
                                                    2:05-CR-791-DAK)
JOSE JUAN FARIAS,

               Defendant-Appellant.


                       ORDER DENYING REQUEST FOR
                      CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.


      This matter is before the court on Jose Juan Farias’s pro se requests for a

certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis. Farias, a federal prisoner, seeks a COA so he can appeal the

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

§ 2253(c)(1)(B). 1 This court grants Farias’s request to proceed on appeal in

forma pauperis. Because, however, he has not “made a substantial showing of the




      1
        The district court did not issue Farias a COA within thirty days of the
filing of his notice of appeal. Accordingly Farias’s request for a COA in the
district court is deemed denied. 10th Cir. R. 22.1(C).
denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for

a COA and dismisses this appeal.

      Farias pleaded guilty to possession with intent to distribute 500 grams or

more of a mixture containing a detectable amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(a). His plea agreement contained

waivers of both appellate and collateral-attack rights. Farias nevertheless brought

the instant § 2255 motion claiming his plea agreement was obtained through

ineffective assistance of counsel. In particular, Farias asserted (1) he did not

knowingly waive his right to directly appeal his sentence and (2) he was coerced

into pleading guilty based on his counsel’s promise that he would receive a ten-

year sentence.

      The district court dismissed Farias’s § 2255 motion with prejudice. The

district court began by recognizing that although waivers of collateral-attack

rights were generally enforceable, an exception existed for challenges involving

claims of ineffective assistance with regard to entering the plea or negotiating the

agreement. United States v. Cockerham, 237 F.3d, 1179, 1183 (10th Cir. 2001).

The district court nevertheless concluded Farias’s conclusory allegations of

ineffective assistance were directly contrary to his statements in the plea

agreement and thus insufficient to state a claim. In signing the plea agreement,

Farias specifically acknowledged he had been advised of and understood the

limitations on his direct appeal and collateral-attack rights. He further expressly

                                          -2-
acknowledged that it was the district court alone that would impose a sentence

and acknowledged the district court’s sentence could differ from any sentence

estimated by the prosecution or defense counsel. When measured against these

specific statements in the plea agreement, Farias’s conclusory allegations of

ineffective assistance were clearly insufficient. Lasiter v. Thomas 89 F.3d 699,

702 (10th Cir. 1996) (holding conclusory allegations of ineffective assistance of

counsel are insufficient to overcome solemn declarations on the part of a movant,

like those present in this case, that a plea is knowing and voluntary).

      The granting of a COA is a jurisdictional prerequisite to Farias’s appeal

from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Farias 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 Farias has

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

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

338. Although Farias 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.

                                          -3-
      Having undertaken a review of Farias’s appellate filing, 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 Farias is not entitled to a COA. The

district court’s resolution of Farias’s § 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 Farias’s request for a COA

and DISMISSES this appeal.

                                               ENTERED FOR THE COURT




                                               Elisabeth A. Shumaker, Clerk




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