F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff–Appellee, No. 06-7092
v. (D.C. No. 06-CV-51-RAW )
DARNELL JAM AR NASH, (E.D. Okla.)
Defendant–Appellant.
OR DER *
Before M cKA Y, BR ISC OE, and M cCO NNELL, Circuit Judges.
In this pro se 28 U.S.C. § 2255 prisoner appeal, Defendant contends that he
received ineffective assistance of counsel regarding his plea agreement as well as
at sentencing and on appeal, that the district court erroneously accepted his plea
in violation of Rule 11 of the Federal Rules of Criminal Procedure, and that the
district court improperly addressed Defendant’s objections in violation of former
provisions of Rule 32 of the Federal Rules of Criminal Procedure.
His conviction was affirmed on direct appeal by a panel of this court in
United States v. Nash, 120 Fed. App’x 770 (10th Cir. 2005) (unpublished), which
addressed the consequence of the appellate waiver in his plea agreement as well
*
This order is not binding precedent, except under the doctrines of law of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.
as the level of effective counsel that led to his knowing and voluntary plea. The
district court, relying predominately on statements made in that opinion and on
the consequences of the appellate waiver provision, determined that Defendant
was not entitled to relief on any of his claims and denied his § 2255 petition and
his request for a certificate of appealability (“COA”).
Although Defendant has not filed a formal COA application, we treat his
notice of appeal as such. See Fed. R. App. P. 22(b)(2). To obtain a certificate of
appealability, Petitioner must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In order to meet this burden,
Petitioner must demonstrate “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. M cDaniel, 529 U.S. 473, 484 (2000) (quotation
omitted).
As an initial matter, we note that the panel on direct appeal concluded that
Defendant knowingly and voluntarily entered into the plea agreement.
Accordingly, Defendant’s Rule 11 challenge is denied, as is his claim of
ineffective assistance of counsel based on the alleged failure of defense counsel to
adequately advise Defendant as to the plea agreement. See United States v.
Nolan, 571 F.2d 528, 530 (10th Cir. 1978) (noting that an issue disposed of on
direct appeal will not be reconsidered on a collateral attack pursuant to § 2255
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absent an intervening change in the law of the circuit). Also, Defendant never
raised his Rule 32 contention on direct appeal. “[T]he failure by a defendant to
raise a nonconstitutional issue on direct appeal when he w as able to do so
ordinarily will bar collateral review of that issue under Section 2255.” United
States v. Gattas, 862 F.2d 1432, 1435 (10th Cir. 1988). Defendant has failed to
overcome this bar. See United States v. Tranakos, 968 F.2d 1225 (10th Cir. 1992)
(table). To the extent Defendant’s Rule 32 argument is predicated on having
received ineffective assistance of counsel at sentencing, we observe that defense
counsel at sentencing objected to certain factual assertions contained in the pre-
sentence report, but those objections were overruled. Defendant has not
established that counsel’s performance “fell below an objective standard of
reasonableness” or that his sentence would have been different were it not for the
alleged ineffectiveness. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Finally, Defendant’s contention that he received ineffective assistance of
counsel on direct appeal is without merit. See United States v. M artinez-Lomeli,
86 F.3d 1167 (10th Cir. 1996) (table) (“The mere filing of an Anders Brief cannot
form the basis for a claim of ineffective assistance of counsel and has no bearing
on the relief being sought by [Defendant] on this direct appeal— relief from the
sentence imposed by the district court.”). We agree with the district court’s
conclusion regarding the lack of meritorious issues and, therefore, with its
conclusion that the Strickland test has not been satisfied.
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A careful review of Defendant’s brief, the district court’s disposition, and
the record on appeal, reveals nothing raising an issue that meets our standard for
the grant of a certificate of appealability. Accordingly, we DENY Defendant’s
request for a certificate of appealability and DISM ISS the appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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