F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 13, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3298
v. (D . Kan.)
DAIM ON T. PORTER, (D.C. No. 05-CV-3384-CM )
Defendant-Appellant.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Daimon T. Porter, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) that would allow him to appeal from the district court’s
order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B). Because we conclude that M r. Porter has failed to make “a
substantial show ing of the denial of a constitutional right,” we deny his request
for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
M r. Porter pled guilty in August of 2003 to one count of a nine-count
indictment, admitting that he engaged in a continuing criminal enterprise to
possess and distribute crack cocaine and to maintain a place for distribution of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel.
crack cocaine, in violation of 21 U.S.C. §§ 841 and 856. As part of his plea
bargain, M r. Porter agreed to waive all rights to appeal or collateral attack. The
district court sentenced him to 180 months in prison. On September 26, 2005,
M r. Porter filed a pro se petition for habeas corpus relief under 28 U.S.C. § 2255.
Porter argued that his indictment was fatally flawed, as count two, alleging a
continuing criminal enterprise, failed to identify the “continuing series” of drug-
related violations necessary to support a conviction. The government moved to
enforce M r. Porter’s appeal waiver. The district court concluded that the
indictment was sound and the w aiver enforceable, and denied M r. Porter’s
petition. He now raises the same issues to this Court.
A district court’s denial of a motion for relief under 28 U.S.C. § 2255 may
be appealed only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). Congress has determined that a COA will issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). The applicant may satisfy this standard “by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims,” or alternatively, “that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003).
W e can offer M r. Porter no such encouragement. He has waived his right
to appeal any portion of his conviction or sentence, and he gives us no reason to
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believe that waiver was invalid. This Court will enforce appeal waivers against
later collateral attacks so long as (1) the disputed appeal falls within the scope of
the waiver; (2) the defendant knowingly and voluntarily waived his appellate
rights; and (3) enforcing the waiver w ould not result in a miscarriage of justice.
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).
As to the first prong, the issue M r. Porter raises here— the adequacy of his
indictment— falls squarely within the scope of his waiver. Contrary to M r.
Porter’s suggestion, a § 2255 petition is a “collateral attack” covered by the terms
of the waiver: “Defendant knowingly and voluntarily waives any right to appeal
or collaterally attack any matter in connection with this prosecution, conviction,
and sentence,” the agreement reads. R. doc. 187 at 6 (emphasis added). M r.
Porter does not contend, per prong two of the Hahn test, that his agreement was
anything other than voluntary and knowing. And indeed, his extended colloquy
with the district court before formally concluding the plea bargain suggests he
understood the scope of the waiver and its effect. Finally, M r. Porter does not
argue that his counsel was ineffective, or that the district court relied on any
impermissible factors in sentencing, or that his sentence exceeds the statutory
maximum, or that the waiver was otherwise unlawful— in short, he makes no
argument that enforcing his plea agreement would result in a miscarriage of
justice. Hahn, 359 F.3d at 1327 (citing United States v. Elliott, 264 F.3d 1171,
1173 (10th Cir. 2001)).
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The only reason M r. Porter offers for setting aside his voluntary waiver is
related to his substantive claim: because his indictment was fatally flawed, he
argues, the district court was deprived of jurisdiction both to hear his case and to
ratify his plea bargain. And jurisdictional challenges, he posits, can never be
waived. Even were this last claim correct, M r. Porter has alleged no
jurisdictional defect here. A defective indictment does not deprive the district
court of subject matter jurisdiction, United States v. Cotton, 535 U.S. 625, 631
(2002), w hich it possesses over all offenses against the United States, 18 U.S.C. §
3231.
For that matter, though we need not reach the issue, we doubt M r. Porter’s
indictment was constitutionally defective. W e have held previously that a
continuing-conspiracy-enterprise indictment is sufficient where, as here, the
instrument charges the defendant in the language of the relevant statute and
alleges at least three predicate violations for the continuing conspiracy in other
counts. United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir. 1989).
M r. Porter’s waiver of appeal is valid and enforceable. He has raised no
constitutional claim on w hich jurists of reason could disagree. Accordingly, we
D EN Y M r. Porter’s request for a COA and DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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