FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 29, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

       v.                                               No. 11-4136
                                                         (D. Utah)
 OSCAR AURELIANO PENA-                        (D.C. No. 2:11-CV-00421-DAK)
 VALENCIA,

              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Oscar Aureliano Pena-Valencia filed a motion for relief under

28 U.S.C. § 2255 in the United States District Court for the District of Utah. The

district court denied the motion, and Defendant seeks a certificate of appealability

(COA) from this court to appeal the denial. See 28 U.S.C. § 2253(c)(1)(B)

(requiring a COA to appeal the denial of a § 2255 motion). We deny his

application for a COA and dismiss the appeal.

I.    BACKGROUND

      Defendant entered into an agreement with the government and pleaded

guilty to reentry of a previously removed alien under 8 U.S.C. § 1326. As part of

the plea agreement, he waived his right to raise a collateral attack on his sentence
except on the ground of ineffective assistance of counsel. The district court

sentenced him to 46 months’ imprisonment. He appealed his sentence but we

dismissed the appeal as untimely. See Order, United States v. Pena-Valencia,

No. 10-4181 (10th Cir. Apr. 14, 2011).

      On May 9, 2011, Defendant filed his § 2255 motion in district court. He

claimed (1) that he was denied his right to effective assistance of counsel because

his trial counsel failed to conduct a thorough examination into the facts of the

case, to interrogate witnesses, to move to suppress evidence, and to apprise him

of his “substantial rights and potential defenses,” R., Vol. 1 at 5; (2) that his plea

was unknowing and involuntary because the sentencing court did not advise him

of his rights under the Constitution and Fed. R. Crim. P. 11; (3) that the

sentencing court erroneously relied upon unsupported allegations in the

presentence report in determining that his prior conviction had been for a

drug-trafficking crime; (4) that he should not have been given an enhanced

sentence because his prior conviction was not for a drug-trafficking crime, and

thus not for an aggravated felony; (5) that his prior conviction was an element of

his offense, not just a sentencing enhancement, and therefore should have been

alleged in his indictment and proved beyond a reasonable doubt; (6) that his

sentence should be modified after taking into account commentary in the

Sentencing Guidelines on cultural assimilation; (7) that his sentence was greater

than necessary to effectuate the goals of 18 U.S.C. § 3553(a); and (8) that his

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custody is in violation of his constitutional rights because his status as an alien

increases the severity of his punishment.

       The district court ruled that Defendant’s waiver of his collateral-attack

rights precluded all his claims except the claim of ineffective assistance of

counsel. And it rejected that claim because his allegations were conclusory. The

court noted: “[Defendant] does not identify any specific evidence that his counsel

should have discovered or moved to suppress. He also fails to identify any

witness who had evidence to support a defense to his illegal reentry charge.” 

Additionally, it said, “[Defendant’s] claim that he was not apprised of his

substantive rights does not identify any specific rights and is not supported by

[his] plea colloquy,” during which he indicated his satisfaction “with the help

given to him by his lawyer” and the court discussed with him “the nature of the

charge, his right to plead not guilty, his right to have a jury trial, his right to call

witnesses, his right to be represented by a lawyer, and his rights with respect to

appeal.” 

       Construed liberally, Defendant’s pleadings in this court appear to raise the

first five issues raised in his § 2255 motion.

II.    DISCUSSION

       A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

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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, 

,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” 

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 either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” 

jurist could dispute the district court’s determination that

Defendant did not adequately allege an ineffective-assistance-of-counsel claim

and that his other claims were barred by the waiver in his plea agreement.

Indeed, Defendant does not challenge in this court the district court’s reasoning

regarding the ineffectiveness claim or its ruling on waiver.

III.   CONCLUSION

       We DENY Defendant’s application for a COA and DISMISS the appeal.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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