FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 10, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-3243
v. District of Kansas
ARTHUR WILLIAMS, JR., (D.C. Nos. 06-CV-4141-SAC and
03-CR-40112-SAC)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
Petitioner Arthur Williams, Jr., 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 motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because we determine that this
collateral attack on Mr. Williams’ conviction and sentence is barred under the
waiver of appeal he executed as part of his plea agreement in this case, we
conclude that Mr. Williams has failed to make “a substantial showing of the
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
denial of a constitutional right,” and therefore deny his request for a COA and
dismiss the appeal. 28 U.S.C. § 2253(c)(2).
BACKGROUND
On January 22, 2004, Mr. Williams entered a plea of guilty to one count of
distribution of a mixture containing a detectable quantity of cocaine base in
violation of 21 U.S.C. § 841(a)(1). He was sentenced to 70 months
imprisonment. In pleading guilty, Mr. Williams signed a plea agreement drafted
by the United States Attorney. The agreement included a waiver of Mr. Williams’
right to appeal or collaterally attack his conviction and sentence:
Waiver of Appeal and Collateral Attack. Defendant knowingly and
voluntarily waives any right to any appeal or collateral attack on any
matter in connection with this prosecution and sentence, except the
defendant reserves the right to appeal the district court’s calculation
of his offense level under the Sentencing Guidelines. The defendant
also waives any right to any challenge to his sentence or [the]
manner in which it was determined in any collateral attack,
including, but not limited to, a motion brought under Title 28, U.S.C.
§ 2255, except to the extent that such a § 2255 claim is deemed
unwaivable under the holding of United States v. Cockerham, 237
F.3d 1179, 1187 (10th Cir. 2001). However, if the United States
exercises its right to appeal the sentence imposed as authorized by
Title 18, U.S.C. § 3742(b), the defendant is released from this waiver
and may appeal his sentence as authorized by Title 18, U.S.C. §
3742(a).
R., doc. 59, at 3–4. As permitted under this waiver, Mr. Williams lodged an
appeal challenging the calculation of his offense level. We affirmed. United
States v. Williams, 431 F.3d 1234 (10th Cir. 2005), cert. denied, 547 U.S. 1091
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(2006). Mr. Williams then filed a motion in the district court seeking to modify
his sentence pursuant to 18 U.S.C. § 3582(c)(2). He disputed the drug quantity
attributed to him as relevant conduct for sentencing purposes, and argued that
subsequent amendments (518 and 591) to the Sentencing Guidelines had lowered
the range applicable to his offense. Because his sentencing had actually taken
place after those amendments, the district court held itself without jurisdiction to
modify the sentence. Dist. Dkt. Doc. 57; see U.S.S.G., app’x C, amend. 518
(effective Nov. 1, 1995), 591 (effective Nov. 1, 2000).
Next, Mr. Williams filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, arguing that his counsel had been
ineffective in failing to object to a two-point firearm enhancement and in
conceding the facts relevant to the district court’s drug quantity finding. In
response, the government moved to enforce the plea agreement’s waiver provision
and dismiss the motion. The district court held that the motion was a collateral
attack within the scope of a waiver knowingly and voluntarily made, and denied
it. The district court also refused to grant a certificate of appealability (COA). 1
1
The petition was received on July 16, 2007, 63 days after the denial of Mr.
Williams’ § 2255 motion, which would ordinarily make it untimely. See United
States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). However, the district court
held the petition, qua notice of appeal, timely under the “prison mailbox rule,”
Fed. R. App. P. 4(c)(1), which under certain circumstances allows documents
submitted by incarcerated litigants to be considered filed when mailed. Because
“[t]he filing of a timely notice of appeal is an absolute prerequisite to our
jurisdiction,” Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir.1996), we
(continued...)
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Mr. Williams now seeks a COA from this Court. The district court granted him
leave to proceed in forma pauperis.
The 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). 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). To
make such a showing, a petitioner must demonstrate that “reasonable jurists could
debate whether . . . 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, 483–84 (2000) (internal quotation
marks omitted).
Mr. Williams advances no argument that satisfies this standard. His claim
that his waiver of collateral attack rights was not knowing and voluntary, was not
raised in district court, and cannot be brought for the first time on appeal.
Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004). His claims that trial
counsel was ineffective in failing to object to a firearm enhancement and in
conceding to the drug-quantity facts were properly rejected by the district court.
When a defendant has waived the right to appeal or collaterally attack a
1
(...continued)
have reviewed the petition, and note that it was properly certified under penalty
of perjury to have been deposited in the prison mail system on July 13, 2007. For
timeliness purposes, the petition is therefore treated as filed on that date, making
it timely.
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conviction or sentence, he may raise the issue of ineffective assistance of counsel
in connection with the negotiation or entry of the plea or of the waiver, but not
ineffectiveness with respect to other matters, including calculation of the sentence
unless explicitly reserved. United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.
2004) (en banc). Mr. Williams’ arguments fall outside that narrow ambit.
To the extent that Mr. Williams’ assertion that “Appellants [sic] counsel
‘lied and misled’ him into believing he did not waive his right to appeal his
sentence or bring a collateral attack,” COA Petn. ¶ 6, at 3, can be liberally
construed as a challenge to the effectiveness of trial counsel in connection with
the negotiation of the waiver, we have thoroughly examined the record below and
conclude that no such claim was presented to the district court. Absent
“extraordinary circumstances to the contrary,” we will not consider such an issue
“for the first time on appeal.” Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801,
814 n.22 (10th Cir. 1995). This is true even when the litigant is a prisoner
seeking a COA pro se. E.g., Laurson v. Leyba, ___ F.3d ___, No. 07-1177, 2007
WL 2874444, at *2 (10th Cir. Oct. 3, 2007).
CONCLUSION
We agree with the district court that the appellate waiver must be enforced,
and therefore do not find that Mr. Williams “has made a substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). Accordingly, we
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DENY Mr. Williams’ request for a COA and DISMISS this appeal.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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