United States v. Le

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 2 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-6228
BILLY MINH LE, (D.C. Nos. 04-CV-447-C
and 01-CR-138-C)
Defendant-Appellant. (W.D. Oklahoma)
ORDER*
Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges.
Billy Minh Le, a federal prisoner appearing pro se, seeks a certificate of
appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct sentence. We deny the request for a COA and dismiss the
appeal.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). A COA can issue only “if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court's
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
After careful review of all of the filings and the record on appeal, we conclude the
requirements for issuance of a COA have not been met.
Le entered a plea of guilty to conspiracy to distribute a list 1 precursor chemical
and was sentenced to 168 months’ imprisonment. His motion to withdraw his plea was
denied. Le filed a direct appeal. This court dismissed the appeal for lack of jurisdiction,
holding Le had waived his right to appeal or collaterally attack his plea, conviction, or
sentence. Le then filed his § 2255 motion on April 7, 2004, alleging ineffective
assistance of counsel “for failure to object to, and request plea not be accepted and appeal
the proper motion, to suppress the issues, and move for jury trial.” ROA, Doc. 182 at 3.
The government filed a motion for enforcement of plea agreement and for denial of the
§ 2255 motion, arguing Le waived the right to file either a direct appeal of his conviction
or a collateral attack. Le responded that he should be excused from application of the
waiver because of his limited knowledge of the English language.
In denying Le’s § 2255 motion, the district court noted that Le previously had
challenged the knowing and voluntary nature of his plea in his motion to withdraw his
plea. The district court denied the motion to withdraw the plea, rejecting the same
language deficiencies he urges in his § 2255 motion. The court further stated that it had
advised Le in open court that as part of the plea agreement, Le waived his right to appeal
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either directly or by collateral challenge, and that “with the assistance of an interpreter,”
Le stated he knew he was giving up that right. ROA, Doc. 191 at 2.
We DENY the request for a COA and DISMISS the appeal for substantially the
same reasons stated by the district court in its order filed July 2, 2004.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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