                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                        January 15, 2013
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                     TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff–Appellee,
                                                               No. 12-3185
 v.                                                (D.C. Nos. 5:11-CV-04118-RDR and
                                                         5:09-CR-40039-RDR-1)
 FRANCISCO NUNEZ,                                              (D. Kansas)

               Defendant–Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Appellant seeks a certificate of appealability to appeal the district court’s denial of

his 28 U.S.C. § 2255 habeas petition. Appellant pled guilty to a federal drug charge and

was sentenced to 121 months of imprisonment, one month above the statutory mandatory

minimum sentence for his offense. Appellant filed an appeal, but his appeal was

dismissed pursuant to the plea agreement’s waiver of appellate rights. In his § 2255

motion, Appellant claimed he received ineffective assistance of counsel during the plea

negotiations because counsel failed to advise him of the deportation consequences of



       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pleading guilty and promised he would receive a lower sentence than the sentence he

ultimately received. After reviewing the record, the district court concluded there was no

factual support for Appellant’s claims. The record, including Appellant’s own statements

at the change of plea hearing and at sentencing, clearly demonstrated that Appellant was

indeed informed of the possibility of deportation and of the potential sentence he faced.

Because the record conclusively refuted Appellant’s factual allegations, the court denied

the habeas petition without holding an evidentiary hearing.

       After thoroughly reviewing Appellant’s arguments and the record on appeal, we

conclude that reasonable jurists would not debate the district court’s decision. See Slack

v. McDaniel, 529 U.S. 473, 484 (2000). Thus, for substantially the same reasons given by

the district court, we DENY Appellant’s request for a certificate of appealability and

DISMISS the appeal. We also DENY Appellant’s request for the appointment of legal

counsel to represent him on appeal. Appellant’s motion to proceed in forma pauperis on

appeal is GRANTED.


                                                  ENTERED FOR THE COURT



                                                  Monroe G. McKay
                                                  Circuit Judge




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