*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ELISEO JIMENEZ-HERNANDEZ, Defendant-Appellant. No. 98-3098 (D. Kan.) (D.Ct. No. 97-CV-3357)

____________________________ ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.
Petitioner Mr. Eliseo Jimenez-Hernandez, a federal prisoner appearing pro-2-

se , seeks a certificate of appealability to appeal th e district court's dismissal of his motion to vacate, set aside, or correct an ille gal sentence under 28 U.S.C. § 2255. Mr. Jimenez-Hernandez challenges the sufficie ncy of the evidence to support his conviction, claiming his conduct did no t meet the requirements for violation of 18 U.S.C. § 924(c)(1), and in the alte rnative that he was denied effective assistance of counsel. Mr. Jimenez-Hernandez never filed a direct appeal to challenge his sentence or conviction. Up on careful review, we deny Mr. Jimenez-Hernandez’s application for a certificate of appealability and dismiss his appeal.
On July 25, 1996, an undercover agent contacted Mr. Jimenez-Hernandez and arranged to make future purchases of cocaine. During this meeting, Mr. Jimenez-Hernandez asked the agent if he wanted to b uy a .357 Magnum revolver in addition to the drugs. The agent agreed, and on the appointed day, Mr. Jimenez-Hernandez sold the undercover agent both th e cocaine and the revolver. Mr. Jimenez-Hernandez was later arrested and charge d with various drug-related offenses. He pleaded guilty to three counts of the indictment, including a violation of 18 U.S.C. § 924(c)(1) for using or carrying a firearm during and in relation to a drug trafficking crime. Id . The court sentenced Mr. JimenezHernandez to forty-six months imprisonment for the drug charges and a-3-

mandatory sixty-month sentence for the § 924(c)(1) violation, the terms to run consecutively.
In its lengthy Memorandum and Order of February 20, 1998, the district court denied Mr. Jimenez-Hernandez’s § 2255 petitio n on a procedural basis because he did not file a direct appeal to challeng e either his sentence or conviction. The district court also denied his alt ernative argument claiming ineffective assistance of counsel after it examinedthe merits and found Mr. Jimenez-Hernandez had failed to show his counsel’s performance was either deficient or prejudicial. Subsequently, Mr. Jimene z-Hernandez petitioned for a certificate of appealability to challenge the distr ict court’s decision. The district court denied his petition in an Order dated April 8 , 1998, citing the reasons it already articulated in its prior Memorandum and Ord er denying Mr. JimenezHernandez’s 28 U.S.C. § 2255 motion. Mr. Jimenez-H ernandez now seeks a certificate of appealability and a decision on the merits.
We will not grant the certificate of appealability without a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), and overruled on other grounds , United States v. Kunzman , 125 F.3d-4-

1363 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998). To satisfy this standard, Mr. Jimenez-Hernandez does not have to de monstrate he would prevail on the merits. Rather, he must demonstrate the issu es raised are debatable among jurists, that a court could resolve the issues diff erently, or that the questions deserve further proceedings. Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983). We agree with the district court that Mr. Jimenez-H ernandez is procedurally barred from raising issues in this petition that he failed to raise on direct appeal. United States v. Frady , 456 U.S. 152, 164 (1982) (“Once the defendant's c hance to appeal has been waived or exhausted ... we are e ntitled to presume he stands fairly and finally convicted, especially when ... h e already has had a fair opportunity to present his federal claims to a fede ral forum.”). However, Mr. Jimenez-Hernandez’s alternative claim of ineffectiv e assistance of counsel is a permissible ground for collateral appeal. Kunzman , 125 F.3d at 1365. Accordingly, we consider whether Mr. Jimenez-Hernan dez has made a substantial showing of a denial of a constitutional right with regard to this alternative claim.

In order for Mr. Jimenez-Hernandez to succeed on th e merits of his ineffective assistance of counsel claim, he must sh ow both that (1) his counsel’s performance was constitutionally deficient, and (2) his counsel’s ineffectiveness resulted in actual prejudice. Strickland v. Washington , 466 U.S. 668, 687 (1984).1 Mr. Jimenez-Hernandez was charged with violating § 924(c)(1) under both the

use and carry prongs of the statute and later plead guilty to the offense. At his plea hearing, Mr. Jimenez-Hernandez expressly admitted he “used a [firearm] in relation to the distribution of the [drugs].” He also adopted without objection the facts as recited by theprosecutor that specified what occurred between the undercover agent and Mr. JimenezHernandez leading to his arrest. This record sufficiently establishes the basis for Mr. Jimenez-Hernandez’s conviction for using or carrying a firearm during and in relation to a drug trafficking crime.
-5- Mr. Jimenez-Hernandez contends counsel failed to make a reasonable investigation into § 924(c)(1) and interpretive cas e law before advising him to plead guilty to using and carrying a firearm duringa drug trafficking offense. After examining the entire record, we find Mr. Jime nez-Hernandez raises no issue “debatable among jurists” on this point. Barefoot, 463 U.S. at 893 n.4. We find it clear that his counsel acted reasonably andthat he suffered no prejudice from his counsel’s performance. Strickland , 466 U.S. at 687.

Mr. Jimenez-Hernandez’s counsel was not deficient i n failing to instruct him that his conduct may not have constituted “use” or “carrying” of a firearm during and in relation to a drug trafficking offens e under § 924(c)(1), because Mr. Jimenez-Hernandez’s admitted actions easily mee t one or both of these alternative bases for conviction. 1 Evidence sufficient to establish either the “use” or “carry” prongs will support the conviction and guilty plea. United States v. Miller , 84 F.3d 1244, 1257 (10th Cir.) (a conviction mustbe affirmed if “there is-6-

sufficient evidence to support it under either of the alternative grounds”), cert. denied , 117 S. Ct. 443 (1996), 118 S. Ct. 419 (1997). Inorder to establish “use” under the government must show “active employment” of the firearm, which is “a use that makes the firearm an operative factor in r elation to the predicate offense.” United States v. Bailey , 516 U.S. 137, 143 (1995). The broader “carry” prong requires only a showing that a person “knowingly possesses and conveys” a firearm “during and in relation to” the drug transaction. Muscarello v. United States , 118 S. Ct. 1911, 1913, 1918 (1998).

In this case, the record shows at the time of the c ocaine sale, Mr. JimenezHernandez took the .357 Magnum revolver out of a ba g and handed it to the undercover officer. Clearly, Mr. Jimenez-Hernandezavailed himself of the firearm even if only to effectuate a sale of the gu n, and the firearm played an integral role in a drug trafficking offense. Smith v. United States , 508 U.S. 223, 224 (1993). This creates a presumed nexus between the firearm and the drug offense, United States v. Holland , 10 F.3d 696, 699 (10th Cir.1993), cert. denied , 510 U.S. 1064 (1994), which a defendant may overcom e only by evidence that “the weapon was present for a reason other than fac ilitating the drug operation.” Id. at 700 (internal quotation marks omitted)

. However, we find Mr. JimenezHernandez’s assertion that he only intended to sell the gun independent of the-7-

drug transaction does not suffice to overcome the p resumed nexus between the firearm and the drugs. Since Mr. Jimenez-Hernandez ’s actions, at the very least, meet the “carry” prong of § 924(c)(1), defense coun sel did not render ineffective assistance when advising defendant he was legally g uilty of the charged offense of knowingly using or carrying firearm during and i n relation to drug trafficking offense. Counsel's advice to Mr. Jimenez-Hernandez before he entered his guilty plea was well within the “objective standard of rea sonableness” given prevailing professional norms. Strickland , 466 U.S. at 688.
After a careful and thorough review of Mr. Jimenez- Hernandez’s brief and other pleadings, the district court’s order, and th e entire record on appeal, we find Mr. Jimenez-Hernandez is procedurally barred f rom challenging the sufficiency of the evidence for his conviction of u sing and carrying a firearm during a drug trafficking offense. In addition, hi s alternative arguments based on ineffective assistance of counsel fail to establish a substantial denial of a constitutional right. Therefore, we deny Mr. Jimen ez-Hernandez’s petition for-8-

certificate of appealability on all claims, and DISMISS the appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge