*

 This order is not binding precedent except under the doctrines of law of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.

FILED

United States Court of Appeals

Tenth Circuit

June 17, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GUSTAVO GUTIERREZ,

Defendant-Appellant.

10-6034

(5:08-CR-00145-C-9 and

5:09-CV-00931-C)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Gustavo Gutierrez, a federal prisoner, pled guilty to one count of being an

illegal alien in the United States without permission, in violation of 8 U.S.C.

§ 1326(a), and one count of conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. § 846. As part of his plea agreement, Mr.

Gutierrez waived his right to appeal or collaterally attack any aspect of his

conviction or sentence. Nevertheless, Mr. Gutierrez later filed a motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence. The district court

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1

 Because Mr. Gutierrez pursues his claims pro se, we afford his pleadings

the solicitous construction they are owed. See Van Deelen v. Johnson, 497 F.3d

1151, 1153 n.1 (10th Cir. 2007).

- 2 -

enforced the waiver provision in Mr. Gutierrez’s plea agreement and denied his

§ 2255 motion. Mr. Gutierrez now seeks to appeal that ruling. Before he may do

so, though, he must first obtain from us a certificate of appealability (COA). 

Because the district court was unquestionably correct to enforce the plea

agreement, we deny Mr. Gutierrez’s request for a COA and dismiss his appeal.

* * *

In his § 2255 motion, Mr. Gutierrez seeks a reduced sentence on the

grounds that his attorney provided him inadequate assistance of counsel in

violation of the Sixth Amendment.1

 See Strickland v. Washington, 466 U.S. 668

(1984). Specifically, he alleges that his lawyer did not explain the consequences

of his plea agreement, did not file an appeal as he requested, and failed to object

to certain aspects of the pre-sentence report prepared before Mr. Gutierrez’s

sentencing. In the district court, the government opposed Mr. Gutierrez’s § 2255

motion, arguing that the waiver provision in his plea agreement is enforceable and

thus bars him from pursuing his claims.

To determine whether the plea agreement precluded Mr. Gutierrez’s claims,

the district court applied the three-part analysis we set forth in United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). First, it concluded that Mr.

Gutierrez’s claims fall within the plain terms of his plea agreement’s waiver

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provision. See D. Ct. Order at 2, R. Vol. I at 205 (citing Hahn, 359 F.3d at

1325). It reasoned that Mr. Gutierrez’s § 2255 motion seeks to collaterally

challenge his sentence, while his plea agreement expressly states that he “waives

his right to . . . collaterally challenge his guilty plea, sentence and restitution

imposed, and any other aspect of his conviction.” Plea Agreement at 7, R. Vol. I

at 101.

Second, it concluded that Mr. Gutierrez had knowingly and voluntarily

agreed to the waiver. It based this conclusion on Mr. Gutierrez’s representations

in the signed plea agreement and at the change of plea hearing that he understood

the terms of the agreement and had accepted them free of any undue influence or

coercion. See D. Ct. Order at 2, R. Vol. I at 205 (citing Hahn, 359 F.3d at 1325). 

In particular, the district court noted that at the change of plea hearing it had

“specifically pointed out to Defendant that he was giving up his right to appeal or

collaterally challenge the conviction” and Mr. Gutierrez “expressed his

understanding and agreement with those terms.” Id.; see also R. Vol. I at 251-58.

Third, the district court concluded that enforcing the plea agreement would

not result in a miscarriage of justice. D. Ct. Order at 2-4, R. Vol. I at 205-07

(citing Hahn, 359 F.3d at 1327). At this step in the analysis, the court considered

and rejected Mr. Gutierrez’s argument that his attorney had provided him

ineffective assistance during his plea process. Specifically, it concluded that Mr.

Gutierrez failed to demonstrate that his counsel’s alleged errors prejudiced him,

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because he made no showing “that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001)

(emphasis and internal quotation marks omitted); see also United States v.

Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002) (“To prevail on his ineffective

assistance claim, defendant must show that he was prejudiced by his trial

counsel’s allegedly deficient performance.”).

Based on these conclusions, the district court held that Mr. Gutierrez’s plea

agreement was enforceable and barred him from bringing the remaining

ineffective assistance of counsel claims. Accordingly, it denied his § 2255

motion. Mr. Gutierrez now seeks to appeal that ruling.

* * *

Before Mr. Gutierrez may pursue his appeal, however, he must first obtain

a COA. See 28 U.S.C. § 2253(c)(1)(B). Because the district court denied his

request for a COA, he has renewed that request to us. We will not issue a COA

unless the defendant makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). And where, as here, the district

court disposes of a case on procedural grounds, the defendant must also

demonstrate that “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000); see also United States v. Salazar, 311 F. App’x 110, 112-13 (10th Cir.

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2009) (unpublished) (treating enforcement of collateral attack waiver as

procedural ruling). 

For substantially the same reasons as the district court, we hold that Mr.

Gutierrez has failed to meet these burdens. See Slack, 529 U.S. at 484 (“Where 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 . . . that the district

court erred in dismissing the petition . . . .”). Neither is any additional

elaboration by us likely to improve on the district court’s thoughtful analysis. We

thus deny Mr. Gutierrez’s request for a COA and dismiss his appeal. We also

deny Mr. Gutierrez’s motion to proceed in forma pauperis because he has failed

to identify “the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n,

115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted).

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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