                                                                              F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 14 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 98-3098
                                                            (D. Kan.)
 ELISEO JIMENEZ-HERNANDEZ,                           (D.Ct. No. 97-CV-3357)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.



      Petitioner Mr. Eliseo Jimenez-Hernandez, a federal prisoner appearing        pro


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
se, seeks a certificate of appealability to appeal the district court's dismissal of

his motion to vacate, set aside, or correct an illegal sentence under 28 U.S.C. §

2255. Mr. Jimenez-Hernandez challenges the sufficiency of the evidence to

support his conviction, claiming his conduct did not meet the requirements for

violation of 18 U.S.C. § 924(c)(1), and in the alternative that he was denied

effective assistance of counsel. Mr. Jimenez-Hernandez never filed a direct

appeal to challenge his sentence or conviction. Upon careful review, we deny

Mr. Jimenez-Hernandez’s application for a certificate of appealability and

dismiss his appeal.



       On July 25, 1996, an undercover agent contacted Mr. Jimenez-Hernandez

and arranged to make future purchases of cocaine. During this meeting, Mr.

Jimenez-Hernandez asked the agent if he wanted to buy a .357 Magnum revolver

in addition to the drugs. The agent agreed, and on the appointed day, Mr.

Jimenez-Hernandez sold the undercover agent both the cocaine and the revolver.

Mr. Jimenez-Hernandez was later arrested and charged with various drug-related

offenses. He pleaded guilty to three counts of the indictment, including a

violation of 18 U.S.C. § 924(c)(1) for using or carrying a firearm during and in

relation to a drug trafficking crime.   Id. The court sentenced Mr. Jimenez-

Hernandez to forty-six months imprisonment for the drug charges and a


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mandatory sixty-month sentence for the § 924(c)(1) violation, the terms to run

consecutively.



      In its lengthy Memorandum and Order of February 20, 1998, the district

court denied Mr. Jimenez-Hernandez’s § 2255 petition on a procedural basis

because he did not file a direct appeal to challenge either his sentence or

conviction. The district court also denied his alternative argument claiming

ineffective assistance of counsel after it examined the merits and found Mr.

Jimenez-Hernandez had failed to show his counsel’s performance was either

deficient or prejudicial. Subsequently, Mr. Jimenez-Hernandez petitioned for a

certificate of appealability to challenge the district court’s decision. The district

court denied his petition in an Order dated April 8, 1998, citing the reasons it

already articulated in its prior Memorandum and Order denying Mr. Jimenez-

Hernandez’s 28 U.S.C. § 2255 motion. Mr. Jimenez-Hernandez now seeks a

certificate of appealability and a decision on the merits.



      We will not grant the certificate of appealability without a “substantial

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

Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996),    cert. denied , 117 S. Ct. 746

(1997), and overruled on other grounds , United States v. Kunzman , 125 F.3d


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1363 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998). To satisfy this

standard, Mr. Jimenez-Hernandez does not have to demonstrate he would prevail

on the merits. Rather, he must demonstrate the issues raised are debatable among

jurists, that a court could resolve the issues differently, or that the questions

deserve further proceedings.    Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983).

We agree with the district court that Mr. Jimenez-Hernandez is procedurally

barred from raising issues in this petition that he failed to raise on direct appeal.

United States v. Frady , 456 U.S. 152, 164 (1982) (“Once the defendant's chance

to appeal has been waived or exhausted ... we are entitled to presume he stands

fairly and finally convicted, especially when ... he already has had a fair

opportunity to present his federal claims to a federal forum.”). However, Mr.

Jimenez-Hernandez’s alternative claim of ineffective assistance of counsel is a

permissible ground for collateral appeal.    Kunzman , 125 F.3d at 1365.

Accordingly, we consider whether Mr. Jimenez-Hernandez has made a substantial

showing of a denial of a constitutional right with regard to this alternative claim.



       In order for Mr. Jimenez-Hernandez to succeed on the merits of his

ineffective assistance of counsel claim, he must show both that (1) his counsel’s

performance was constitutionally deficient, and (2) his counsel’s ineffectiveness

resulted in actual prejudice.   Strickland v. Washington , 466 U.S. 668, 687 (1984).


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Mr. Jimenez-Hernandez contends counsel failed to make a reasonable

investigation into § 924(c)(1) and interpretive case law before advising him to

plead guilty to using and carrying a firearm during a drug trafficking offense.

After examining the entire record, we find Mr. Jimenez-Hernandez raises no

issue “debatable among jurists” on this point.       Barefoot, 463 U.S. at 893 n.4. We

find it clear that his counsel acted reasonably and that he suffered no prejudice

from his counsel’s performance.         Strickland , 466 U.S. at 687.



       Mr. Jimenez-Hernandez’s counsel was not deficient in failing to instruct

him that his conduct may not have constituted “use” or “carrying” of a firearm

during and in relation to a drug trafficking offense under § 924(c)(1), because

Mr. Jimenez-Hernandez’s admitted actions easily meet one or both of these

alternative bases for conviction.   1
                                        Evidence sufficient to establish either the “use”

or “carry” prongs will support the conviction and guilty plea.          United States v.

Miller , 84 F.3d 1244, 1257 (10th Cir.) (a conviction must be affirmed if “there is


       1
          Mr. Jimenez-Hernandez was charged with violating § 924(c)(1) under both the
use and carry prongs of the statute and later plead guilty to the offense. At his plea
hearing, Mr. Jimenez-Hernandez expressly admitted he “used a [firearm] in relation to the
distribution of the [drugs].” He also adopted without objection the facts as recited by the
prosecutor that specified what occurred between the undercover agent and Mr. Jimenez-
Hernandez leading to his arrest. This record sufficiently establishes the basis for Mr.
Jimenez-Hernandez’s conviction for using or carrying a firearm during and in relation to a
drug trafficking crime.


                                              -5-
sufficient evidence to support it under either of the alternative grounds”),        cert.

denied , 117 S. Ct. 443 (1996), 118 S. Ct. 419 (1997). In order to establish “use”

under the government must show “active employment” of the firearm, which is “a

use that makes the firearm an operative factor in relation to the predicate

offense.” United States v. Bailey , 516 U.S. 137, 143 (1995). The broader

“carry” prong requires only a showing that a person “knowingly possesses and

conveys” a firearm “during and in relation to” the drug transaction.           Muscarello

v. United States , 118 S. Ct. 1911, 1913, 1918 (1998).



       In this case, the record shows at the time of the cocaine sale, Mr. Jimenez-

Hernandez took the .357 Magnum revolver out of a bag and handed it to the

undercover officer. Clearly, Mr. Jimenez-Hernandez availed himself of the

firearm even if only to effectuate a sale of the gun, and the firearm played an

integral role in a drug trafficking offense.         Smith v. United States , 508 U.S. 223,

224 (1993). This creates a presumed nexus between the firearm and the drug

offense, United States v. Holland , 10 F.3d 696, 699 (10th Cir.1993),          cert. denied ,

510 U.S. 1064 (1994), which a defendant may overcome only by evidence that

“the weapon was present for a reason other than facilitating the drug operation.”

Id. at 700 (internal quotation marks omitted)         . However, we find Mr. Jimenez-

Hernandez’s assertion that he only intended to sell the gun independent of the


                                               -6-
drug transaction does not suffice to overcome the presumed nexus between the

firearm and the drugs. Since Mr. Jimenez-Hernandez’s actions, at the very least,

meet the “carry” prong of § 924(c)(1), defense counsel did not render ineffective

assistance when advising defendant he was legally guilty of the charged offense

of knowingly using or carrying firearm during and in relation to drug trafficking

offense. Counsel's advice to Mr. Jimenez-Hernandez before he entered his guilty

plea was well within the “objective standard of reasonableness” given prevailing

professional norms. Strickland , 466 U.S. at 688.



      After a careful and thorough review of Mr. Jimenez-Hernandez’s brief and

other pleadings, the district court’s order, and the entire record on appeal, we

find Mr. Jimenez-Hernandez is procedurally barred from challenging the

sufficiency of the evidence for his conviction of using and carrying a firearm

during a drug trafficking offense. In addition, his alternative arguments based on

ineffective assistance of counsel fail to establish a substantial denial of a

constitutional right. Therefore, we deny Mr. Jimenez-Hernandez’s petition for




                                          -7-
certificate of appealability on all claims, and    DISMISS the appeal.



                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




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