                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 30, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 09-3262
                                                        (D. Kansas)
       v.
                                            (D.C. Nos. 2:09-CV-02108-JWL and
                                                  2:06-CR-20175-JWL-1)
GUILLERMO PENA-BAEZ,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Proceeding pro se, Guillermo Pena-Baez 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 Pena-Baez’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 Pena-Baez 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).

      Pena-Baez pleaded guilty to one count of possession with intent to

distribute more than fifty grams of methamphetamine and aiding and abetting that
offense. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. Pursuant to the terms of a

written plea agreement, Pena-Baez reserved the right to appeal the denial of a

motion to suppress evidence. However, he specifically waived the right to

directly appeal or collaterally attack his conviction and sentence. This court

affirmed the denial of Pena-Baez’s suppression motion. United States v. Pena-

Baez, 285 F. App’x 553, 558 (10th Cir. 2008).

      Pena-Baez filed the instant § 2255 motion on March 4, 2009, raising three

claims of ineffective assistance of counsel and one claim alleging the district

court should have reviewed his presentence investigation report before accepting

his guilty plea. The Government filed a Motion to Enforce Defendant’s Waiver

of Collateral Attack and argued all four claims raised in Pena-Baez’s § 2255

motion fell within the waiver of appeal rights contained in the plea agreement.

The district court granted the Government’s motion with respect to Pena-Baez’s

claims his attorney was ineffective during the suppression hearing and on direct

appeal, and his claim the district court failed to review his presentence

investigation report. The court, however, concluded Pena-Baez’s ineffective

assistance claim relating to the negotiation of his plea agreement did not fall

within the rights he waived in the plea agreement. See United States v.

Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). The court denied relief on

that claim, concluding Pena-Baez’s conclusory allegations of ineffective

assistance were insufficient to overcome statements in the plea agreement and

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statements Pena-Baez made in open court during the plea proceedings that he was

knowingly and voluntarily entering into the plea agreement. See Lasiter v.

Thomas, 89 F.3d 699, 702-03 (10th Cir. 1996).

      To be entitled to a COA, Pena-Baez 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 Pena-Baez 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

Pena-Baez 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 Pena-Baez’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 Pena-Baez is not entitled to a COA. Pena-Baez’s conclusory

allegations that his counsel erroneously informed him that he would receive a

sentence of life imprisonment if convicted by a jury, are contradicted by

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statements he made under oath during his plea colloquy and are insufficient to

support his ineffective assistance claim. Thus, the district court’s resolution of

Pena-Baez’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 Pena-Baez’s request for a COA and dismisses this

appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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