* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.VICTOR DANIEL CHAVARRIAAHUMADA, Defendant-Appellant. No. 02-2263 (District of New Mexico) (D.C. No. CIV-02-709 JC)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , 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(G). T he case is therefore ordered submitted without oral argument.-2-

This matter is before the court on Victor Daniel Ch avarria-Ahumada’s pro

se request for a certificate of appealability (“COA”) . Chavarria-Ahumada seeks a COA so that he can appeal the district court’s dism issal of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing that no appea l may be taken from a final order denying a § 2255 motion unless the movant first obtains a COA). Because Chavarria-Ahumada has not made a “su bstantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and dismisses the appeal. Chavarria-Ahumada pleaded guilty to illegally reent ering the United States after having been previously deported following con viction for an aggravated felony; he was sentenced to a term of imprisonment of fifty-seven months. See 8 U.S.C. § 1326(a), (b). His plea agreement containe d a waiver of his right to appeal or collaterally attack his conviction. Neve rtheless, Chavarria-Ahumada filed the instant § 2255 motion alleging that his c ounsel was ineffective and that his guilty plea was not knowing and voluntary. In essence, Chavarria-Ahumada argued that his attorney had misled him into signin g a plea agreement which bargained away his right to appeal or collaterally attack his conviction in exchange for sentence reduction that he would have received anyway. In denying relief, the district court noted that Chavarria-Ahu mada’s motion was defeated by his own allegations. In particular, Chavarria-Ahum ada conceded in his pleadings1 In his most recent request for a COA, Chavarria-Ahu mada indicated as

follows: In as I have been allowed to submit an additional p etition for certificate of appealability, I now wish to take th is opportunity to submit an application which is completely differentfrom the petition I submitted earlier. In reviewing [the October 17th Request], I note it is a motion which has no merit in the law. I was assisted by w hat is called a “jail-house lawyer” or rather someone who does not fully understand the law. My intent was to reduce my Federal senten ce which I have always felt excessive. -3- that he would have pleaded guilty even if he had no t been “induced” by his counsel to sign the plea agreement and did not asse rt that his sentence would have been further reduced if he had not signed the plea agreement. On October 17, 2002, Chavarria-Ahumada filed a requ est for a COA with this court (the “October 17th Request”). The Octob er 17th Request sought a COA on the same issues raised before the district court . Shortly thereafter, this court notified Chavarria-Ahumada that the October 17th Re quest did not conform with court rules because it was not submitted on the form mandated by this court. See 10th Cir. R. 22.1(A) (providing that a request for a COA must be made on the form provided by the court). When Chavarria-Ahumad a eventually filed a conforming request for a COA, he specifically notedthat he did not seek a COA on the issues raised before the district court but, instead, sought to raise an entirely new issue 1 : whether § 1326(b) is unconstitutional in light of the Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000).-4-

To be entitled to a COA, Chavarria-Ahumada must mak e “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate “th at reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 123 S. Ct. 1029, 1039 (2003) (quotations omitted). In decidin g whether Chavarria-Ahumada has carried his burden, this court undertakes “a pr eliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Id. at 1040. Although Chavarria-Ahumada need not demonstr ate that his appeal will succeed to be entitled to a COA, he must “prove som ething more than the absence of frivolity or the existence of mere good faith.” Id. In light of the standards set out above, it is clea r that Chavarria-Ahumada is not entitled to a COA. First, none of the issues p resented in ChavarriaAhumada’s application for a COA were raised in the district court. This court generally does not review issues that were not rais ed in the district court. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Second, Chav arriaAhumada’s plea agreement contained a waiver of his right to collaterally challenge his conviction. See United States v. Cockerham , 237 F.3d 1179, 1183 (10th Cir. 2001) (holding that a waiver of collater al attack rights in a plea-5-

agreement will be enforced where both the waiver an d the plea are knowingly and voluntarily made). As Chavarria-Ahumada has conced ed in his request for a COA that his plea agreement is knowing and voluntary, this court will enforce his waiver of rights to collaterally attack his convict ion. Finally, it is absolutely clear that Chavarria-Ahumada’s claims relating to Apprendiare meritless. United States v. Mora , 293 F.3d 1213, 1219 (10th Cir.) (“Apprendiis not a watershed decision and hence is not retroactively applicable to initial habeas petitions.”), cert. denied, 123 S. Ct. 388 (2002); United States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th Cir. 2000) (Supreme Court’s holdin g in Almendarez-Torres v. United States , 523 U.S. 224 (1998) that § 1326(b) sets out sente ncing enhancement rather than element of aggravated crime is unaffected by Apprendi). For those reasons set out above, Chavarria-Ahumada’ s request for a COA is DENIED . This appeal is hereby DISMISSED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge