F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 2 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-7031
v. (D.C. No. 03-CV-520-P)
(E.D. Okla.)
DANIEL JOE PRICE,
Defendant-Appellant.
ORDER
Before EBEL, MURPHY and McCONNELL, Circuit Judges.
Daniel Joe Price (“Defendant”), a federal prisoner appearing pro se and in
forma pauperis, 1 seeks a certificate of appealability (“COA”) to challenge the
district court’s denial of his Motion to Vacate, Set Aside, or Correct Sentence,
brought pursuant to 28 U.S.C. § 2255. Also pending is Defendant’s Motion for
Reconsideration regarding our decision to deny his motion to strike the
government’s response to his application for COA as untimely.
1
Based on our review of Defendant’s financial declarations, we grant his
motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(1)
(2000).
BACKGROUND
On October 18, 2000, the government charged Defendant with a six count
indictment alleging three firearms violations and three counts of assaulting or
impeding a federal officer. Defendant originally pleaded not guilty, and the case
proceeded to trial on April 2, 2001. Two-and-one-half weeks into the trial,
however, Defendant decided to enter into a plea agreement whereby he would
plead guilty to two counts of the indictment (felon in possession of a firearm and
assaulting a federal officer) in exchange for a 10-year sentence. In addition, the
government agreed to dismiss all other charges in the indictment, and Defendant
agreed to waive his right to direct appeal and collateral attack on the conviction.
After a lengthy hearing, the district court found Defendant’s actions to be
voluntary and accepted the plea. In accordance with the agreement, the court
sentenced Defendant to 10 years in prison followed by three years of supervised
release for each count, with the sentences to run concurrently. In addition,
Defendant was fined a special assessment of $100.00 for each count.
Defendant then filed a direct appeal to this court, in which his attorney
filed an Anders brief. Defendant’s pro se brief, however, raised several
non-jurisdictional issues and alleged antecedent constitutional defects, including
suppression of the fruits of an alleged illegal search warrant, insufficiency of the
evidence, and a violation of Rule 5 of the Federal Rules of Criminal Procedure
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(initial appearance before a magistrate). United States v. Price, 50 Fed. Appx.
968, 969 (10th Cir. 2002). We found that by entering an unconditional guilty
plea, Defendant waived his right to raise these issues on appeal. Id. Defendant
also contended that one of the statutes under which he was convicted, 18 U.S.C. §
922(g), was facially unconstitutional, a claim which we also rejected. Id.
Finding no other non-frivolous grounds for appeal in the record, we dismissed the
case. Id. In addition we found “nothing in the record to indicate that Mr. Price's
guilty plea was not knowing and voluntary.” Id.
Defendant then filed a § 2255 motion with the district court, in which his
sole ground for relief was ineffective assistance of counsel in connection with his
decision to enter into a guilty plea. Defendant did not contend that his plea was
involuntary, but rather argued that “had it not been for counsel’s errors during the
trial, he would not have had to take counsel’s advice . . . and pleaded [sic]
guilty.” (R.O.A. at Tab 1.) Specifically, Defendant complained about counsel’s
(1) failure to call a particular corroborating witness; (2) failure to have
photographs examined by an expert; (3) failure to raise a Brady violation; (4)
improper raising of a search warrant issue; and (5) failure to challenge the court’s
jurisdiction.
The district court did not reach the merits of Defendant’s motion, holding
instead that Defendant had explicitly waived any right to collateral attack on the
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sentence as part of his plea agreement. The court noted that it found nothing in
the record to indicate that Defendant’s plea (and therefore the waiver of collateral
relief) was not knowing and voluntary. As a result, the court denied Defendant’s
§ 2255 motion, his application for a COA, and his motion to proceed in forma
pauperis.
DISCUSSION
In the instant case, Defendant seeks a COA from this court because the
district court denied his request to appeal its decision. See Fed. R. App. P.
22(b)(1). To prevail, Defendant must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). This is accomplished
by establishing that “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. McDaniel, 529 U.S. 473, 483-484 (2000) (quotations omitted).
Defendant concedes that his motion does not challenge the voluntariness of
his plea. Rather, his argument is that even a voluntary plea may nevertheless be
invalid if it is motivated by previous instances of ineffective assistance of
counsel. The Tenth Circuit addressed this very situation three years ago in United
States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). In Cockerham, we held
that a waiver of § 2255 rights will be enforced when the collateral attack does not
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challenge counsel’s representation in negotiating or entering the plea or the
waiver. Id. at 1187.
In the instant case, none of the alleged errors Defendant cites pertain to
plea negotiations. Rather, Defendant argues that counsel’s poor previous trial
performance put him in a position in which a plea was simply the best option.
Under Cockerham, this is not the sort of argument which survives a waiver of
post-conviction rights. See Id. at 1187-1191. Thus, we are not convinced that
reasonable jurists could debate that Defendant’s motion should have been
resolved differently. See Slack, 529 U.S. 483-484.
Accordingly, we DENY COA and DISMISS the appeal. Defendant’s
pending Motion to Reconsider is also DENIED for the reasons stated in our
earlier order, filed August 13, 2004.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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