FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 31, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 07-5098
v. (N. D. Oklahoma)
W A L TER BR OWN E WIN G , (D.C. No. 06-CV-0597-CVE-PJC)
(D.C. No. 05-CR-068-04-CV E)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
W alter Brown Ewing, proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his motion for relief
under 28 U.S.C. § 2255. See id. § 2253(c)(1)(B) (requiring COA to appeal denial
of § 2255 motion). Because no reasonable jurist could conclude that M r. Ewing’s
§ 2255 motion should have been resolved in a different manner, see Slack v.
M cDaniel, 529 U.S. 473, 485 (2000), we deny his application for a COA and
dismiss this appeal.
On June 17, 2005, M r. Ewing pleaded guilty in the United States District
Court for the Northern District of Oklahoma to charges of conspiracy, see
18 U.S.C. § 371, and possession of stolen mail, see id. § 1708. He had entered
into a plea agreement that waived his right to a direct appeal (except to challenge
a sentence in excess of the statutory maximum) and “waive[d] the right to
collaterally attack the conviction or sentence pursuant to 28 U.S.C. § 2255, except
for claims based on ineffective assistance of counsel which challenge the validity
of the guilty plea or this waiver.” R. Vol. I, Doc. 80 at 12. The court sentenced
him to a prison term of 60 months for each offense, the terms to be served
consecutively, and ordered him to pay restitution of $111,540.81 and a special
monetary assessment of $200.00.
On October 26, 2006, M r. Ewing filed a motion for relief under 28 U.S.C.
§ 2255. He alleged that he had received ineffective assistance of counsel because
his counsel had (1) failed to appeal his sentence for being in excess of the
statutory maximum; (2) “failed to note and argue that the sentence of 120 months
confinement violated due process because the sentence was greater than the
‘statutory maximum’ allowable sentence for the offense(s) of conviction,”
R. Vol. I, Doc. 199 at 3; and (3) failed to appeal the imposition of consecutive
terms of imprisonment. The district court enforced M r. Ewing’s plea-agreement
w aiver and denied his § 2255 motion. It also denied his application for a COA ,
but permitted him to proceed in form a pauperis.
The district court ruled that M r. Ewing’s waiver was enforceable under
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). Under Hahn an appellate
waiver is enforceable if “(1) . . . the disputed appeal falls within the scope of the
waiver of appellate rights; (2) . . . the defendant knowingly and voluntarily
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waived his appellate rights; and (3) . . . enforcing the waiver would [not] result in
a miscarriage of justice.” Id. at 1325. The third condition is met unless “[1] . . .
the district court relied on an impermissible factor such as race, [2] . . .
ineffective assistance of counsel in connection with the negotiation of the waiver
renders the waiver invalid, [3] . . . the sentence exceeds the statutory maximum,
or [4] . . . the waiver is otherwise unlawful..” A waiver is “unlawful” if the error
seriously affects the “‘fairness, integrity or public reputation of the judicial
proceedings.’” Id. at 1327 (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). W e apply the same analysis to waivers of collateral review. See, e.g.,
United States v. Wales, No. 05-3445, 2006 W L 950655, at *2 (10th Cir. Apr. 13,
2006) (unpublished).
W ith respect to the first condition, the district court pointed out that
M r. Ewing waived all postconviction rights except for challenges to the validity
of his plea or waiver. Because M r. Ewing’s ineffective-assistance-of-counsel
claims in his § 2255 motion did not involve the validity of his plea or waiver, the
court determined that his challenges fell “squarely within” the scope of his
collateral-attack waiver. R. Vol I, Doc. 215 at 8.
Regarding the second condition, the district court observed that M r. Ewing
had signed the plea agreement and the petition to enter a plea agreement, both of
which specifically acknowledged that he was entering the agreement knowingly
and voluntarily. The court also pointed out that it had conducted a thorough plea
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colloquy under Federal Rule of Criminal Procedure 11, during which M r. Ewing
acknowledged that his postconviction waiver was knowing and voluntary.
As for the third condition, the district court pointed out that M r. Ewing had
not contended that race had ever been a factor; his ineffective-assistance-of-
counsel claims did not relate to the negotiation of the waiver; his sentence did not
exceed, although it equaled, the statutory maximum (indeed, the plea agreement
specified that the maximum sentence he could receive w as ten years’
imprisonment); and there had been no error that affected his substantial rights.
N o reasonable jurist could debate the district court’s ruling. Therefore, w e
DENY M r. Ewing’s application for a COA and DISM ISS this appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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