FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 13, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                       No. 08-3324
 v.                                     (Dist. Ct. Case Nos. 2:08-CV-02246-JWL
                                               and 2:06-CR-20142-JWL-3)
 EDUARDO SOTO-DIARTE,                                    (D.Kan.)

              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY
                    AND DISMISSING APPEAL


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Eduardo Soto-Diarte, a federal prisoner appearing pro se and in forma

pauperis (ifp), seeks a certificate of appealability (COA) permitting him to appeal

from the district court’s dismissal of his § 2255 habeas petition. The petition

claims Soto-Diarte received ineffective assistance of counsel during sentencing.

The government filed a motion to enforce Soto-Diarte’s waiver of appeal in his

plea agreement. In response, Soto-Diarte claimed his attorney did not fully

explain the waiver and, therefore, it was not voluntary. See United States v.

Cockerham, 

, 1187 (10th Cir. 2001) (“[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.”). The record, however, demonstrates Soto-Diarte specifically stated he

understood and knowingly agreed to the waiver in his petition to plead guilty, in

his plea agreement, and in a specific and extensive colloquy with the judge at his

plea hearing. The district court determined Soto-Diarte was not entitled to federal

habeas relief because he knowingly and voluntarily waived his right to

collaterally attack his sentence in his plea agreement and enforcement of the

waiver would not result in a miscarriage of justice. See United States v. Hahn,

, 1325 (10th Cir. 2004) (en banc). The court denied Soto-Diarte’s

request for a COA.

      We review for “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). See Miller El v. Cockrell, 

, 327

(2003); Slack v. McDaniel, 

, 483-84 (2000).

      We have reviewed Soto-Diarte’s request for a COA, the district court’s

disposition, and the record on appeal. Reasonable jurists would not debate the

correctness of the district court’s disposition. We DENY a COA and DISMISS

this nascent appeal.

                                              Entered for the Court:

                                              Terrence L. O’Brien
                                              Circuit Judge




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