UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

EVERETT LEE SUNIGA, 

 Defendant - Appellant. 

No. 14-5141 

(D.C. Nos. 4:13-CV-00630-GKF-PJC and 

4:10-CR-00086-GKF-2) 

(N.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

Everett Suniga, a federal prisoner appearing pro se,1

 seeks a certificate of 

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 

motion. We deny a COA and dismiss the appeal. 

 *

 After examining the briefs and appellate record, this panel determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment 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. 

1

 Because Suniga is proceeding pro se, we construe his filings liberally. See 

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

FILED 

United States Court of Appeals

Tenth Circuit 

May 4, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I 

Suniga pled guilty to a methamphetamine-related charge, and his sentence was 

affirmed on direct appeal. United States v. Suniga, 467 F. App’x 798, 799 (10th Cir. 

2012) (unpublished). As part of his plea agreement, Suniga waived the right to 

collaterally attack his sentence, except by way of an ineffective assistance claim that 

challenged the validity of the plea or the waiver agreement. Suniga subsequently 

submitted a § 2255 motion to vacate his sentence that alleged, among other things, 

ineffective assistance of counsel during the plea process. The district court 

determined that Suniga’s claims were barred by his waiver, and that, even were they 

not barred, Suniga failed to show that either the plea or the waiver was invalid. It 

denied a COA.

II 

We will grant a COA “only if the applicant has made a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a 

showing, Suniga must demonstrate “that reasonable jurists could 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) (quotation omitted). 

“A plea agreement waiver of postconviction rights does not waive the right to 

bring a § 2255 petition based on ineffective assistance of counsel claims challenging 

the validity of the plea or the waiver.” United States v. Cockerham, 237 F.3d 1179, 

Appellate Case: 14-5141 Document: 01019424968 Date Filed: 05/04/2015 Page: 2 
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1187 (10th Cir. 2001). Even if we assume that Suniga’s claims fall within the 

Cockerham exception, they fail to meet the requirements for relief. 

 Strickland v. Washington, 466 U.S. 668 (1984), establishes that Suniga’s 

ineffective assistance of counsel claim can only succeed if his counsel’s performance 

fell below an objective standard of reasonableness and he suffered prejudice as a 

result. Id. at 687-88, 694. Suniga offers no factual allegations indicating that his 

counsel’s performance in securing a plea agreement was objectively unreasonable or 

that there was a reasonable probability that the government or the court would have 

accepted any alternative proposal. See United States v. Boone, 62 F.3d 323, 327 

(10th Cir. 1995) (“Without any showing that . . . such plea would have been 

acceptable to the court, or that the resulting sentence would have been different than 

that imposed . . . all that the Defendant urges is speculation.”). He additionally 

claims the district court should have scheduled an evidentiary hearing, but we see no 

basis for concluding that such a hearing would have advanced his argument. Cf. 

United States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (“Given the conclusory 

nature of Defendant’s allegations, the district court’s denial of an evidentiary hearing 

was not an abuse of discretion.”). 

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III 

We DENY a COA and DISMISS the appeal. Suniga’s motion to proceed in 

forma pauperis is GRANTED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

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