FILED
United States Court of Appeals
Tenth Circuit
November 29, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 11-4136
(D. Utah)
OSCAR AURELIANO PENA- (D.C. No. 2:11-CV-00421-DAK)
VALENCIA,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Defendant Oscar Aureliano Pena-Valencia filed a motion for relief under
28 U.S.C. § 2255 in the United States District Court for the District of Utah. The
district court denied the motion, and Defendant seeks a certificate of appealability
(COA) from this court to appeal the denial. See 28 U.S.C. § 2253(c)(1)(B)
(requiring a COA to appeal the denial of a § 2255 motion). We deny his
application for a COA and dismiss the appeal.
I. BACKGROUND
Defendant entered into an agreement with the government and pleaded
guilty to reentry of a previously removed alien under 8 U.S.C. § 1326. As part of
the plea agreement, he waived his right to raise a collateral attack on his sentence
except on the ground of ineffective assistance of counsel. The district court
sentenced him to 46 months’ imprisonment. He appealed his sentence but we
dismissed the appeal as untimely. See Order, United States v. Pena-Valencia,
No. 10-4181 (10th Cir. Apr. 14, 2011).
On May 9, 2011, Defendant filed his § 2255 motion in district court. He
claimed (1) that he was denied his right to effective assistance of counsel because
his trial counsel failed to conduct a thorough examination into the facts of the
case, to interrogate witnesses, to move to suppress evidence, and to apprise him
of his “substantial rights and potential defenses,” R., Vol. 1 at 5; (2) that his plea
was unknowing and involuntary because the sentencing court did not advise him
of his rights under the Constitution and Fed. R. Crim. P. 11; (3) that the
sentencing court erroneously relied upon unsupported allegations in the
presentence report in determining that his prior conviction had been for a
drug-trafficking crime; (4) that he should not have been given an enhanced
sentence because his prior conviction was not for a drug-trafficking crime, and
thus not for an aggravated felony; (5) that his prior conviction was an element of
his offense, not just a sentencing enhancement, and therefore should have been
alleged in his indictment and proved beyond a reasonable doubt; (6) that his
sentence should be modified after taking into account commentary in the
Sentencing Guidelines on cultural assimilation; (7) that his sentence was greater
than necessary to effectuate the goals of 18 U.S.C. § 3553(a); and (8) that his
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custody is in violation of his constitutional rights because his status as an alien
increases the severity of his punishment.
The district court ruled that Defendant’s waiver of his collateral-attack
rights precluded all his claims except the claim of ineffective assistance of
counsel. And it rejected that claim because his allegations were conclusory. The
court noted: “[Defendant] does not identify any specific evidence that his counsel
should have discovered or moved to suppress. He also fails to identify any
witness who had evidence to support a defense to his illegal reentry charge.” Id.
at 53. Additionally, it said, “[Defendant’s] claim that he was not apprised of his
substantive rights does not identify any specific rights and is not supported by
[his] plea colloquy,” during which he indicated his satisfaction “with the help
given to him by his lawyer” and the court discussed with him “the nature of the
charge, his right to plead not guilty, his right to have a jury trial, his right to call
witnesses, his right to be represented by a lawyer, and his rights with respect to
appeal.” Id. at 54.
Construed liberally, Defendant’s pleadings in this court appear to raise the
first five issues raised in his § 2255 motion.
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
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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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. And “[w]here a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.” Id.
No reasonable jurist could dispute the district court’s determination that
Defendant did not adequately allege an ineffective-assistance-of-counsel claim
and that his other claims were barred by the waiver in his plea agreement.
Indeed, Defendant does not challenge in this court the district court’s reasoning
regarding the ineffectiveness claim or its ruling on waiver.
III. CONCLUSION
We DENY Defendant’s application for a COA and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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