F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 4, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-3321
(D.C. No. 06-CV-3123-W EB and
RU BEN PARTIDA-CERV ANTES, 04-CR-10029-W EB)
(D . Kan.)
Defendant-Appellant.
OR DER *
Before B RISC OE , M cKA Y, and M cCO NNELL, Circuit Judges.
Defendant pleaded guilty to possession with intent to distribute in excess of
five kilograms of cocaine in violation of 21 U.S.C. § 841(a) and (b)(1)(A) and
was sentenced to the statutory minimum of 120 months’ imprisonment. On direct
appeal, a panel of this court granted the government’s motion to enforce
Defendant’s plea agreement and dismissed the appeal. United States v. Partida-
Cervantes, No. 04-3363 (10th Cir. Jul. 12, 2005) (unpublished).
*
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
This order is not binding precedent, except under the doctrines of law of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.
Defendant then filed a § 2255 petition alleging involuntary and unknowing
waiver of appellate rights, ineffective assistance of counsel at sentencing, and
unconstitutional Booker error at sentencing. The district court rejected these
claims and denied Defendant’s request for a certificate of appealability (“COA”).
The district court revisited these claims following Defendant’s motion for
reconsideration, and after further analysis spurred by Defendant’s new arguments,
rejected Defendant’s motion and confirmed its denial of a COA.
Defendant advances to this court the same arguments he made below in
addition to a claim that the district court erred in not granting an evidentiary
hearing regarding Defendant’s alleged failure to comprehend “safety valve”
relief. However, our consideration of these claims is predicated on our issuance
of a CO A. Defendant is entitled to a COA only if he makes a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do
so, Defendant must demonstrate “that reasonable jurists could debate w hether (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.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotation
omitted). In other words, the applicant must show that the district court's
resolution of the constitutional claim was either “debatable or wrong.” Id.
Between the district court’s original decision denying Defendant’s § 2255
petition and its subsequent decision denying Defendant’s motion to reconsider,
we believe the district court more than adequately addressed Defendant’s
arguments and see no reason to repeat that effort here. The district court’s
well-reasoned opinions concluded that Defendant waived by plea agreement his
right to collaterally challenge his sentence, received effective assistance of
counsel, and comprehended his plea agreement with the aid of counsel and an
interpreter.
In addition, the district court analyzed, in the alternative, Defendant’s
claimed eligibility for “safety valve” relief and concluded that because his
underlying crime involved kidnapping by threats of violence, he could not satisfy
18 U.S.C. § 3553(f)(2). Given this result, as well as the district court’s correct
determination that Defendant received effective assistance of counsel regarding
this issue, we do not find that the district court abused its discretion by denying
Defendant an evidentiary hearing on this issue. See United States v. Harms, 371
F.3d 1208, 1210 (10th Cir. 2004); United States v. Cox, 83 F.3d 336, 341 (10th
Cir. 1996).
Consequently, after having carefully reviewed Defendant’s brief, the
district court’s dispositions, and the record on appeal, we conclude that no
reasonably debatable issues are presented by Defendant’s appeal. Accordingly,
we D EN Y Defendant’s request for a certificate of appealability and DISM ISS the
appeal. W e do, however, GR A NT Defendant’s motion to proceed in forma
pauperis.
Entered for the Court
M onroe G. M cKay
Circuit Judge