FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 30, 2015
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
GUSTAVO BARRERA-ESTRADA,
Petitioner-Appellant,
No. 15-2093
(D.C. Nos. 2:14-CV-00562-RB-LAM
v.
and 5:12-CR-02006-RB-6)
(D.N.M.)
UNITED STATES OF AMERICA,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
In his written plea agreement to various federal crimes, Mr. Barrera-Estrada
waived his right to appeal or collaterally attack his conviction and sentence with
one exception: he retained the right to challenge the effectiveness of his counsel
in negotiating or entering the plea or waiver. Despite the terms of the plea deal,
Mr. Barrera-Estrada soon brought a 21 U.S.C. § 2255 motion alleging that his
trial counsel was ineffective not in negotiating or entering the plea or waiver but
in failing to object to a pre-sentencing report and failing to obtain a downward
departure of his sentence. A magistrate judge and then a district judge denied Mr.
*
This order is not binding precedent except under the doctrines of law of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.
Barrera-Estrada’s § 2255 motion as well as his later request for a certificate of
appealability, reasoning in extensive opinions that the motion was barred by the
terms of his plea agreement. Mr. Barrera-Estrada now renews his COA request
before us, but we see in his papers nothing to suggest error in the work of the
magistrate judge or district judge and we adopt their views as our own. 28 U.S.C.
§ 2253. Further, to the extent Mr. Barrera-Estrada seeks for the first time on
appeal to challenge counsel’s performance in connection with negotiating the plea
agreement, he failed to do so before the district court and a litigant generally may
not pursue arguments in this court that he did not pursue in that one first. See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-31 (10th Cir. 2011). The
request for a COA is denied and the appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-2-