                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 6, 2008
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 07-3315
                                                         (D. Kansas)
       v.
                                                 (D.C. Nos. 06-CV-3277-SAC
                                                   & 03-CR-40126-SAC)
ALEX OROZCO,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Proceeding pro se, Alex Orozco seeks to appeal the district court’s denial

of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The

matter is before this court on Orozco’s request for a certificate of appealability

(“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a

“final order in a proceeding under section 2255” unless the movant first obtains a

COA). Because Orozco has not “made a substantial showing of the denial of a

constitutional right,” this court denies his request for a COA and dismisses this

appeal. Id. § 2253(c)(2).

      Orozco pleaded guilty to distribution of methamphetamine, in violation of

18 U.S.C. § 841(a)(1). Although the written plea agreement contained a waiver
of Orozco’s right to directly appeal or collaterally attack his conviction and

sentence, he filed a direct appeal with this court. United States v. Orozco, 219 F.

App’x 777, 777 (10th Cir. 2007). The Government filed a motion seeking

enforcement of the waiver. Id. This court concluded Orozco (1) sought to raise

issues that fell within the scope of the appeal waiver and (2) knowingly and

voluntarily entered into the plea agreement and waiver. Because enforcing the

waiver would not result in a miscarriage of justice, the court granted the

Government’s motion and dismissed Orozco’s appeal. Id.; United States v. Hahn,

359 F.3d 1315, 1327 (10th Cir. 2004) (en banc).

      Orozco filed the instant § 2255 motion on February 1, 2008, asserting

multiple ineffective assistance of counsel claims, including allegations his

counsel was ineffective for failing to “perfect” a direct appeal, 1 and a claim his

sentence was imposed in violation of United States v. Booker, 543 U.S. 220

(2005). The Government moved to dismiss Orozco’s § 2255 motion based on the

following waiver provision in the plea agreement:

      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. The defendant is aware that Title 18,
      U.S.C. § 3742 affords a defendant the right to appeal the conviction
      and sentence imposed. By entering into this agreement, the
      defendant knowingly . . . waives any right to challenge a sentence or

      1
       We are puzzled by this claim in light of the fact that Orozco’s counsel
filed both a timely notice of appeal and an appellate brief arguing for a reduction
in Orozco’s sentence. United States v. Orozco, 219 F. App’x 777 (10th Cir.
2007).

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      otherwise attempt to modify or change his sentence or manner in
      which it was determined in any collateral attack, including, but not
      limited to, a motion brought under Title 28, U.S.C. § 2255 . . . .

The district court enforced the waiver of Orozco’s right to collaterally attack his

sentence or the manner in which it was determined and dismissed Orozco’s

§ 2255 motion. See Hahn, 359 F.3d at 1325.

       To be entitled to a COA, Orozco 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Orozco 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 Orozco 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 Orozco’s application for a COA and

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

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes he is not entitled to a COA. The district court’s resolution of Orozco’s

                                          -3-
§ 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 Orozco’s request for a COA and dismisses this appeal. His request

to proceed in forma pauperis on appeal is granted.

                                               ENTERED FOR THE COURT




                                               Elisabeth A. Shumaker, Clerk




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