FILED
United States Court of Appeals
Tenth Circuit
May 13, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3324
v. (Dist. Ct. Case Nos. 2:08-CV-02246-JWL
and 2:06-CR-20142-JWL-3)
EDUARDO SOTO-DIARTE, (D.Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
Eduardo Soto-Diarte, a federal prisoner appearing pro se and in forma
pauperis (ifp), seeks a certificate of appealability (COA) permitting him to appeal
from the district court’s dismissal of his § 2255 habeas petition. The petition
claims Soto-Diarte received ineffective assistance of counsel during sentencing.
The government filed a motion to enforce Soto-Diarte’s waiver of appeal in his
plea agreement. In response, Soto-Diarte claimed his attorney did not fully
explain the waiver and, therefore, it was not voluntary. See United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (“[A] plea agreement waiver of
postconviction rights does not waive the right to bring a § 2255 petition based on
ineffective assistance of counsel claims challenging the validity of the plea or the
waiver.”). The record, however, demonstrates Soto-Diarte specifically stated he
understood and knowingly agreed to the waiver in his petition to plead guilty, in
his plea agreement, and in a specific and extensive colloquy with the judge at his
plea hearing. The district court determined Soto-Diarte was not entitled to federal
habeas relief because he knowingly and voluntarily waived his right to
collaterally attack his sentence in his plea agreement and enforcement of the
waiver would not result in a miscarriage of justice. See United States v. Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). The court denied Soto-Diarte’s
request for a COA.
We review for “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). See Miller El v. Cockrell, 537 U.S. 322, 327
(2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
We have reviewed Soto-Diarte’s request for a COA, the district court’s
disposition, and the record on appeal. Reasonable jurists would not debate the
correctness of the district court’s disposition. We DENY a COA and DISMISS
this nascent appeal.
Entered for the Court:
Terrence L. O’Brien
Circuit Judge
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