United States v. Suarez , 186 F. App'x 842 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
July 11, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3014
v. (D.C. Nos. 05-CV-3366-JW L and
03-CR-20085-JW L)
JUA N SUAR EZ, (D . Kan.)
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before HA RTZ, EBEL and TYM K O VICH , Circuit Judges.
Juan Suarez, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2255 petition for
habeas corpus. W e deny his request for a COA and dismiss this appeal.
On February 2, 2004, M r. Suarez pleaded guilty to violating 21 U.S.C.
§§ 841 and 846 by conspiring to distribute and possess with intent to distribute at
*
After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
least 500 grams of methamphetamine. In the plea agreement executed by M r.
Suarez, he “waive[d] any right to appeal or collaterally attack any matter in
connection with [his] prosecution, conviction and sentence,” including his right to
file “a motion brought under . . . § 2255.” On direct appeal, M r. Suarez
challenged his sentence under Blakely v. W ashington, 542 U.S. 296 (2004). W e
granted the Government’s motion to enforce the plea agreement and dismissed
that appeal.
M r. Suarez subsequently filed a motion to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255. In that motion, M r. Suarez asserted that 1) his
conviction violates the Ninth and Tenth Amendments; 2) he received ineffective
assistance of counsel; and 3) his sentence is unconstitutional under Blakely and
United States v. Booker, 543 U.S. 220 (2005). In response, the Government again
sought to enforce M r. Suarez’s plea agreement waiver. The district court, in a
very well-reasoned and thorough opinion, granted the Government’s motion,
finding that M r. Suarez entered the agreement knowingly, intelligently, and
voluntarily and that enforcing the waiver would not result in a miscarriage of
justice. The court then dismissed M r. Suarez’s § 2255 motion, and M r. Suarez
applied to this court for a COA to appeal that dismissal. 1
1
The district court did not act on the issue of CO A. Under our Emergency
General Order of October 1, 1996, we deem the district court’s failure to issue a
COA within thirty days after filing of the notice of appeal as a denial of a
certificate. See, e.g., United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th
Cir. 2000).
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W e have carefully reviewed the record, M r. Suarez’s brief, the district
court’s order, and the applicable law. W e conclude, for the same reasons set forth
by the district court in its order dismissing M r. Suarez’s § 2255 motion, that no
“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.
M cD aniel, 529 U .S. 473, 484 (2000) (quotations omitted). 2 Accordingly, we
DENY M r. Suarez’s request for a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
2
On appeal, M r. Suarez has moved to file an addendum to his appellate
brief to allege insufficiency of the indictment as an additional ground in support
of his § 2255 motion. This issue falls within the scope of M r. Suarez’s waiver of
his right to collaterally attack his prosecution, conviction, and sentence, which
M r. Suarez executed knowingly and voluntarily. Additionally, even if this issue
fell outside the scope of M r. Suarez’s w aiver and we could otherwise review this
claim, it is meritless. The indictment alleged the essential elements of the
charged offense with sufficient certainty to inform M r. Suarez of the nature of the
offense charged and to protect him from double jeopardy. See United States v.
Ailsworth, 138 F.3d 843, 850 (10th Cir. 1998). W e therefore D ENY M r. Suarez’s
motion to file an addendum to his brief.
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