United States v. Alvarez

23 F. App'x 984

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 4 2002 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 01-6160 v. (Western District of Oklahoma) (D.C. No. 00-CV-2058-T) JOSE SOCORRO ALVAREZ,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. 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. This case is before the court on Jose Socorro Alvarez’s request for a

certificate of appealability (“COA”). Alvarez seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. §

2253(c)(1)(B) (providing that no appeal may be taken from a “final order in a

proceeding under section 2255” unless the movant first obtains a COA). Because

Alvarez has not “made a substantial showing of the denial of a constitutional

right,” this court denies his request for a COA and dismisses the appeal. See id.

§ 2253(c)(3).

Pursuant to a plea agreement, Alvarez pleaded guilty to possession with

intent to distribute methamphetamine and was sentenced to a term of eighty-seven

months in prison. The plea agreement contained a waiver of direct appeal and

collateral attack rights. Alvarez nevertheless filed the instant § 2255 motion

claiming that his counsel had been constitutionally ineffective in several respects.

Relying on this court’s recent decision in United States v. Cockerham, 237 F.3d

1179, 1187 (10th Cir. 2001), the district court concluded that Alvarez had waived

the right to bring all such claims, with the exception of “ineffective assistance of

counsel claims challenging the validity of the plea or the waiver.” Upon

examining the record, the district court concluded that Alvarez had knowingly and

voluntarily pleaded guilty and that he had completely failed to demonstrate that he

-2- was prejudiced by any of counsel’s actions in negotiating the plea agreement and

waiver of rights.

Alvarez is entitled to a COA only if he can make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this

showing by demonstrating that the issues he raises are debatable among jurists,

that a court could resolve the issues differently, or that the questions presented

deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). This court has conducted a thorough review of Alvarez’s appellate brief

and request for a COA, the district court order, and the entire appellate record.

That review demonstrates that Alvarez’s conclusory allegations that his attorney

“pressured” him to make an “involuntary” plea are simply insufficient to

overcome his statements in open court during the plea hearing that he was

knowingly and voluntarily executing the guilty plea and waiver of rights. See

Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir. 1996) (“[R]epresentations of the

defendant . . . as well as any findings made by the judge accepting the plea

constitute a formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity. The subsequent

presentation of conclusory allegations unsupported by specifics is subject to

summary dismissal.” (quotation omitted)). Furthermore, there is absolutely no

evidence in the record indicating that the United States was willing to enter into a

-3- conditional plea agreement preserving Alvarez’s right to challenge the district

court’s denial of his suppression motion. Nor is there any evidence that Alvarez

would have insisted on going to trial rather than pleading guilty if his counsel had

informed him that course was necessary to preserve the right to appellate review

of the suppression question. Accordingly, this court DENIES Alvarez’s request

for a COA for substantially those reasons set out in the district court’s order

entered March 6, 2001, and DISMISSES the appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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