FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 17, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 13-6000
(D.C. Nos. 5:10-CV-01205-F and
v. 5:09-CR-00156-F-2)
(W.D. Okla.)
RICHARD L. BISHOP,
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit
Judges.
Richard L. Bishop, a federal prisoner, seeks a certificate of appealability
(COA) to appeal the district court’s denial of his motion under 28 U.S.C. § 2255
to vacate his guilty plea. Bishop was sentenced to 180 months’ imprisonment
after pleading guilty to one count of conspiracy to distribute methamphetamine
and one count of engaging in an illicit monetary transaction. Bishop filed the
§ 2255 motion challenging his guilty plea on the ground that his counsel had been
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
constitutionally ineffective, which the district court construed as a challenge to
the voluntary and knowing nature of Bishop’s plea.
Given the deference owed to the district court’s factual findings, no
reasonable jurist could disagree with the court’s denial of Bishop’s § 2255
motion. Accordingly, we DENY the COA and DISMISS the appeal.
I. Background
Bishop worked at Allergy Labs in Oklahoma City, Oklahoma. Over the
course of several months, he stole from his employer over 200 pounds of
ephedrine for a friend, Adam Richard, who then sold it to various
methamphetamine “cooks.” Bishop received a total of $55,000 from Richard for
the ephedrine.
Bishop was indicted with one count of conspiracy to distribute
methamphetamine and one count of engaging in an illicit monetary transaction for
using the theft proceeds to purchase a Mercedes Benz SUV. Bishop met with
federal prosecutors and agents for a proffer meeting, during which he admitted to
stealing the ephedrine, to knowing that the ephedrine was being used to produce
methamphetamine, and to purchasing his SUV with proceeds from the theft.
Bishop decided to plead guilty. On Bishop’s Petition to Enter Plea of
Guilty, it lists a ten-year minimum sentence for the drug conspiracy count. The
petition also contains a factual summary of the offense written by Bishop: “I
agreed to provide and provided ephedrine to Adam Richard violating a federal
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drug law. This ephedrine was distributed by Adam Richard to others for the
production of methamphetamine.” R., Vol. I at 64. The petition bears Bishop’s
signature. A previously prepared presentence report (PSR) calculated Bishop’s
range according to the Sentencing Guidelines (USSG) as between 235 and 292
months.
At Bishop’s plea hearing, Bishop answered yes to all the judge’s colloquy
questions, including whether: (1) a signature on the petition was Bishop’s; (2) a
signature on the plea agreement was Bishop’s; (3) Bishop understood that the
charges to which he was pleading guilty carried a ten-year minimum sentence; (4)
Bishop understood that he was waiving his right to appeal, unless the sentence
was above the guideline range; (5) Bishop had entered into an agreement to
supply Richard with ephedrine in order to produce methamphetamine; and (6)
Bishop had used at least $10,000 of the proceeds from the ephedrine sale to
purchase the SUV.
At sentencing, held the same day as entry of the guilty plea, Bishop’s
counsel argued for the ten-year minimum, a significant downward departure from
the 235 months that was the bottom of the guideline range. The government
asked for a within-guidelines sentence. The court ultimately imposed a sentence
of 180 months. Of further note, Bishop was later charged with altering a letter of
support his brother had written for his sentencing hearing.
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Six months later, Bishop filed a pro se motion under 28 U.S.C. § 2255 to
vacate his sentence on the ground his counsel had been constitutionally
ineffective. He raised six separate arguments for why his counsel had been
ineffective: (1) for failing to challenge the indictment as barred by the statute of
limitations; (2) for advising Bishop to plead guilty to a drug distribution
conspiracy when he only supplied a precursor chemical; (3) for failing to object to
the voluntariness of Bishop’s plea; (4) for advising Bishop to plead guilty to the
illicit monetary transaction count; (5) for failing to object to the two-level
sentencing enhancement Bishop received for being an organizer or leader in the
conspiracy; and (6) for failing to file an appeal as requested. In support of his
argument, Bishop reproduced what he claimed to be the contents of an email he
had sent to his counsel disputing the factual basis of his plea petition. In the
purported email, Bishop maintains he did not know the ephedrine would be used
to produce methamphetamine.
The district court granted Bishop an evidentiary hearing and appointed him
new counsel. At the hearing, the court heard testimony from Bishop’s prior
counsel, Bishop’s father, Bishop’s two brothers, Bishop’s ex-wife, Bishop’s
mother, the ATF agent who investigated the case, and Bishop himself.
Bishop’s prior counsel detailed the course of his representation. Counsel
testified that he never received the alleged email from Bishop that was included in
the § 2255 motion. He also testified that he never told Bishop that a sentence less
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than the mandatory minimum (ten years) was possible. The district court found
Bishop’s counsel’s testimony credible.
Most of Bishop’s family members testified that they were under the
impression that Bishop would receive a few years’ imprisonment, and possibly
only probation. Bishop’s father testified that before sentencing Bishop’s counsel
had told him that the “worst case scenario would be probation.” R., Vol. II at 79.
The district court found that, given the implausibility of any attorney giving such
a prediction, Bishop’s counsel made no such statement. And, aside from the
father, none of the family members testified to hearing any statements concerning
Bishop’s likely sentence directly from his counsel; rather, the statements came
from Bishop himself. Consequently, the district court found that their
misinformation about Bishop’s likely sentence was merely part of Bishop’s
pattern of deceit and denial.
Bishop testified that he was repeatedly misinformed by his counsel about
the sentence he faced, the factual basis of his plea, and the possibility of changing
his plea. The district court found nothing in Bishop’s testimony credible. The
court, citing Bishop’s responses at the plea colloquy, found that Bishop indeed
knew he faced a ten-year minimum sentence and knew the ephedrine would be
used to produce methamphetamine.
The court made additional factual findings, including: (1) Bishop’s waiver
and plea were knowing and voluntary; (2) Bishop answered truthfully to questions
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regarding the factual basis of his plea; and (3) Bishop never instructed his counsel
to appeal his sentence. The court noted that because Bishop’s plea agreement had
a valid appeal waiver, the only possible basis for his § 2255 motion concerned the
knowing and voluntary nature of his plea or waiver. Yet, given the factual
findings it had already made, the court concluded Bishop could not show that
either his waiver or plea had been entered into unknowingly or involuntarily.
Accordingly, the district court denied Bishop’s § 2255 motion.
II. Analysis
To appeal the district court’s judgment, Bishop must first obtain a COA.
To obtain a COA, Bishop must make a “substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). And the assessment of
Bishop’s constitutional claims must be done while giving proper deference to the
district court’s factual findings, which, on a § 2255 motion, we review for clear
error. See United States v. Washington, 619 F.3d 1252, 1256 (10th Cir. 2010);
see also United States v. Raifsnider, 252 F. App’x 866, 868 (10th Cir. 2007)
(reviewing factual findings for clear error when deciding whether to issue COA).
We review the legal conclusions of a § 2255 motion de novo. Washington, 619
F.3d at 1256.
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Bishop raises various arguments for why his counsel was constitutionally
ineffective, but because Bishop’s plea agreement contained a waiver of all
appellate rights, including the right to make collateral attacks, the only basis for a
§ 2255 motion is the validity of the plea or the appellate waiver itself. See United
States v. Viera, 674 F.3d 1214, 1217–18 (10th Cir. 2012).
Guilty pleas and waivers are valid only if they were entered into knowingly
and voluntarily. See Bradshaw v. Stumpf, 545 U.S. 175, 182–83 (2005). With
respect to a guilty plea, the defendant must know the nature of the charges against
him as well as the likely consequences of his plea. Id. Notwithstanding a waiver
of appellate rights, claims of counsel’s ineffective assistance can be raised to the
extent they prove that a plea or waiver was not entered into knowingly and
voluntarily. United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).
As an initial matter, Bishop provides no evidence contradicting the district
court’s finding that he knowingly and voluntarily waived his appellate rights. As
a result, we consider Bishop’s ineffective assistance arguments only insofar as
they cast into doubt the validity of his guilty plea. 1
1
Because of the appeal waiver, Bishop cannot now argue that counsel was
ineffective for failing to challenge the organizer/leader enhancement, which was
stipulated to in his plea agreement. And he presents no argument or evidence that
he was unaware of this stipulation such that it rendered his guilty plea unknowing
or involuntary. Nor does Bishop’s argument concerning counsel’s failure to file
an appeal cause us to doubt the validity of his plea.
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The only two arguments Bishop raises that go to the nature of his
plea—counsel’s advice about the factual basis of his plea and counsel’s advice
about the likely sentence—conflict with the district court’s factual findings.
While Bishop contends he did not know the ephedrine was being used to produce
methamphetamine and that the money used to purchase his SUV did not come
from drug proceeds, the district court made explicit factual findings to the
contrary. Indeed, in his proffer meeting with the government, Bishop admitted to
using at least $10,000 of his proceeds from the ephedrine sales to purchase the
SUV. During the plea colloquy, Bishop answered affirmatively to all the court’s
questions concerning the factual basis of his plea and whether he understood that
he faced a ten-year minimum sentence. While Bishop claims his counsel
effectively told him to lie when answering these questions, the district court did
not find Bishop’s testimony on this issue credible. Absent clear evidence to the
contrary, we do not question a district court’s credibility determinations. See
United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003)
(reviewing credibility determinations for clear error). Here, Bishop presents no
such evidence.
Accordingly, we have no reason to doubt the district court’s finding that
Bishop’s plea was knowing and voluntary.
III. Conclusion
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Because no reasonable jurist, in light of the factual findings below, could
disagree with the district court’s resolution of Bishop’s challenge to the knowing
and voluntary nature of his guilty plea, we DENY the COA and DISMISS the
appeal.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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