UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee, 

v. 

BAYRON MOREIRA, 

 Defendant–Appellant.

No. 10-3089

(D.C. Nos. 2:09-CV-02507-KHV and 

2:06-CR-20021-KHV-JPO-13)

(D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, McKAY, and LUCERO, Circuit Judges. 

Bayron Moreira seeks a certificate of appealability (“COA”) to appeal the denial 

of his 28 U.S.C. § 2255 habeas petition. We deny a COA and dismiss the appeal. 

 Just before his trial was set to begin, Moreira pled guilty to one count of 

conspiracy to possess several controlled substances with intent to distribute, and one 

count of distributing methamphetamine. He was sentenced to 151 months’ 

imprisonment—a term at the low end of his advisory United States Sentencing 

Guidelines range. After we affirmed his sentence on direct appeal, see United States v. 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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

July 21, 2010

Elisabeth A. Shumaker 

Clerk of Court

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-2-

Moreira, 333 Fed. App’x 366 (10th Cir. 2009) (unpublished), Moreira filed a habeas 

petition advancing three claims of ineffective assistance of counsel. The district court 

rejected each of these clams on the merits and declined to issue a COA. Moreira timely 

appealed. 

Moreira may not proceed on appeal unless we grant a COA. § 2253(c)(1)(B). To 

obtain a COA, Moreira must show “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) (quotations omitted). 

On appeal, Moreira contends the district court improperly dismissed his third 

ineffective assistance of counsel claim. In that claim, Moreira argued that his trial 

counsel was ineffective for failing to advise him that waiting until the day of trial to enter 

a guilty plea would make him ineligible for a three-level reduction for acceptance of 

responsibility pursuant to U.S.S.G. § 3E1.1(b). As a remedy, Moreira requested an 

additional reduction in sentencing level. The district court rejected this claim on the 

ground that Moreira had not demonstrated prejudice because he had made no showing 

that he would have pled guilty earlier had his attorney advised him of the § 3E1.1(b) 

concern. The court also noted that the record demonstrated Moreira was holding out for a 

better plea offer. 

Moreira does not challenge the district court’s conclusions. Rather, he now asserts 

that he would not have pled guilty had he been informed he was ineligible for the 

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§ 3E1.1(b) reduction, and thus his plea was not knowingly and voluntarily entered.1 But 

“an attorney’s erroneous sentence estimate does not render a plea involuntary.” United 

States v. Silva, 430 F.3d 1096, 1099 (10th Cir. 2005). Moreover, at the change of plea 

hearing, the district court thoroughly explained to Moreira that any advice he received 

from his attorney regarding a probable Guidelines range was nothing more than an 

“educated guess[]” and that the pending presentence investigation or court rulings “could 

have a huge effect on the kind of sentence” ultimately imposed. Moreira responded that 

he understood the court’s admonitions. Accordingly, he cannot obtain habeas relief 

based on counsel’s alleged failure to discuss § 3E1.1(b).2

 

Moreira’s request for a COA is DENIED, and the appeal is DISMISSED. 

Moreira’s motion for leave to proceed in forma pauperis is GRANTED. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

 1

 Moreira argues that this allegation was implicitly included in his third claim 

below, or, in the alternative, that his present assertion relates back to the original 

complaint. We assume for purposes of this order that the claim is properly before us. 

See Brown v. Sirmons, 515 F.3d 1072, 1092-93 (10th Cir. 2008) (we may proceed 

directly to the merits of a potentially barred claim in the interest of judicial efficiency). 

2

 Moreira makes an oblique reference to Padilla v. Kentucky, 130 S. Ct. 1473 

(2010), and claims his counsel failed to advise him that he would be deported upon 

conviction. Because this claim was neither raised below nor developed sufficiently on 

appeal, we will not address it. See Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 

1274, 1280-81 (10th Cir. 2003); O’Connor v. City & County of Denver, 894 F.2d 1210, 

1214 (10th Cir. 1990). 

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