F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff- Appellee,
No. 06-6076
v. (W . D. Oklahoma)
(D.C. Nos. 05-CV-543-C and
DECORY DANYAYLE W ILLIA M S, 04-CR-81-C)
Defendant - Appellant.
OR DER
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
Decory Danyayle W illiams seeks a certificate of appealability (“COA”) to
appeal the district court’s order denying his 28 U.S.C. § 2255 petition to vacate,
modify, or set aside his sentence. In that § 2255 petition, M r. W illiams alleged
ineffective assistance of counsel. For substantially the same reasons set forth by
the district court in its well-reasoned order, we deny M r. W illiams’s application
for a COA and dismiss this matter.
I. BACKGROUND
M r. W illiams pleaded guilty to interstate transportation of a minor female
with intent that the minor engage in prostitution, a violation of 18 U.S.C. § 2423.
His plea agreement with the government provided that M r. W illiams
knowingly and voluntarily waives his right to:
a. A ppeal or collaterally challenge his guilty plea
and any other aspect of his conviction, including but not
limited to any rulings on pretrial suppression motions or
fany other pretrial disposition of motions and issues.
b. Appeal, collaterally challenge, or move to
modify under 18 U.S.C. § 3582(c)(2) or some other
ground, his sentence as imposed by the Court and the
manner in which the sentence is determined, provided the
sentence is within or below the applicable guideline range
determ ined by the Court to apply to this case. Defendant
acknowledges that this w aiver remains in full effect and is
enforceable, even if the C ourt rejects one or more of the
positions of the United States or the defendant in
paragraph 7 concerning the application of the U.S.
Sentencing Guidelines. 1
Rec. vol. I, doc. 83, at 5 (Plea Agreement, signed June 14, 2004). The district
court sentenced M r. W illiams to a term of 120 months’ imprisonment. M r.
W illiams did not file a direct appeal of his conviction and sentence.
1
In paragraph 7 of the plea agreement, the parties agreed that M r.
W illiams should receive a two-level downward adjustment for acceptance of
responsibility pursuant to USSG § 3E1.1(a) if he committed no further crimes and
complied with the plea agreement and that to the extent he qualified for that
downward adjustment, the government would move for an additional one-level
downward adjustment under § 3E1.1.
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On M ay 16, 2005, M r. W illiams filed the instant 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence. He argued that he had received
ineffective assistance of counsel in violation of his Sixth Amendment rights
because his counsel failed to (1) file a direct appeal, as M r. W illiams had
requested; (2) challenge his sentence on appeal based upon United States v.
Booker, 543 U.S. 220 (2005); and (3) challenge his classification as a career
offender.
The district court held an evidentiary hearing and heard testimony from M r.
W illiams and his trial counsel. M r. W illiams testified that he called his trial
counsel within twenty-four hours of the sentencing hearing and requested that she
file an appeal. In contrast, his trial counsel testified that M r. W illiams had called
her but that the two had discussed the fact that he had waived his right to appeal
except in limited circumstances. His counsel denied that M r. W illiams had ever
instructed her to file an appeal.
After hearing the testimony, the district court found M r. W illiams’s counsel
credible and did not believe M r. W illiams’s own account of their conversation.
The court therefore concluded that “[M r.] W illiams did not instruct his counsel to
file an appeal.” Rec. vol. I. doc. 133, at 4 (M em. Op. Jan. 11, 2006). It thus
rejected M r. W illiams’s first claim for ineffective assistance of counsel.
The court also rejected M r. W illiams’s other claims. In light of its finding
that M r. W illiams had not instructed his counsel to appeal his conviction and
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sentence, it concluded that his counsel was not ineffective for failing to raise a
Booker claim on appeal. As to the claim involving his career offender
classification, the court concluded that it was barred by the waiver of collateral
review in the plea agreement.
II. D ISC USSIO N
In order to obtain a COA, M r. W illiams must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. W illiams
may make this showing by demonstrating 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.” M iller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted). “[A] claim can be debatable even
though every jurist of reason might agree, after the COA has been granted and the
case has received full consideration, that [the] petitioner will not prevail.” Id. at
338.
H ere, for substantially the same reasons set forth by the district court, we
conclude that M r. W illiams is not entitled to a COA. The district court made its
finding that M r. W illiams had not instructed his counsel to appeal after hearing
testimony from both parties, and there is no indication that the finding is clearly
erroneous. See United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998)
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(“[W]e review the district court’s . . . findings of fact [on a § 2255 motion] for
clear error.”). In light of that finding, M r. W illiams’s counsel was not ineffective
for failing to file an appeal and failing to raise a Booker claim on appeal. M r.
W illiams’s claim involving his counsel’s failure to challenge his classification as
a career offender also lacks merit. As noted by the district court, such a challenge
is barred by the plea agreement.
III. C ON CLU SIO N
A ccordingly, w e D EN Y M r. W illiams’s application for a COA, and we
DISM ISS this matter.
Entered for the Court,
Robert H. Henry
Circuit Judge
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