FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 6, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-6008
TRAVIS EMANUEL BAILEY, (D.C. No. 5:07-CV-01115-R)
(W. D. Oklahoma)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Defendant Travis Emanuel Bailey, a federal prisoner appearing pro se,
seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(1) in
order to challenge the district court’s denial of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence. Because Defendant has failed to satisfy
the standards for the issuance of a COA, we deny his request and dismiss the
matter.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I.
In August 2004, Defendant pled guilty to one count of possession of a
firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C.
922(g)(3). Defendant’s plea agreement contained the following waiver of
appellate rights:
[D]efendant in exchange for the promises and concessions made by
the United States in this plea agreement, knowingly and voluntarily
waives his right to:
a. Appeal 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 any other pretrial
dispositions 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 determined by the Court to apply to
this case. Defendant acknowledges that this waiver remains in
full effect and is enforceable, even if the Court rejects one or
more of the positions of the United States or defendant set
forth in paragraph 7 concerning the application of the U.S.
Sentencing Guidelines[;]
c. It is provided that (i) defendant specifically does not waive
the right to appeal an upward departure from the sentencing
guideline range determined by the Court to apply to this case,
and (ii) his waiver of rights to appeal and to bring collateral
challenges shall not apply to appeals or challenges based on
changes in the law reflected in Tenth Circuit or Supreme Court
cases decided after the date of this agreement that are held by
the Tenth Circuit or Supreme Court to have retroactive effect.
United States v. Bailey, 187 F. App’x 846, 852 (10th Cir. 2006) (quoting the plea
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agreement) (alterations in original).
Defendant appealed his sentence to this court, arguing that (1) the district
court misapplied the United States Sentencing Guidelines (“Guidelines”), (2)
there was insufficient evidence to support enhancements to his sentence, and (3)
his Sixth Amendment rights were violated. In an unpublished opinion, we
affirmed his sentence, holding that the waiver of appellate rights in the plea
agreement precluded Defendant from challenging the district court’s application
of the Guidelines and the sufficiency of the evidence supporting the
enhancements to his sentence. See Bailey, 187 F. App’x at 851-54. We also held
that, although the waiver did not preclude Defendant’s argument under Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220
(2005), the Sixth Amendment error at sentencing was harmless. See Bailey, 187
F. App’x at 854-56.
Defendant then filed the instant motion under § 2255, contending that (1)
his trial counsel was ineffective in failing to investigate, discover, and present
exculpatory evidence and evidence of prosecutorial misconduct at sentencing, and
(2) the prosecutor committed misconduct at sentencing in failing to reveal that the
Oklahoma State Bureau of Investigation did not quantify the amount of drugs in a
mixture, and in misrepresenting that there were 3,785 grams of methamphetamine
in a mixture, when the prosecutor knew that the actual quantity of
methamphetamine was much less.
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The district court denied Defendant’s motion. The district court concluded
that the waiver in the plea agreement was valid, and that the grounds for relief
cited by Defendant fell within the scope of the waiver. Enforcement of the
waiver, moreover, would not result in a fundamental miscarriage of justice. The
district court thus held that the waiver precluded Defendant from collaterally
challenging his sentence in this fashion.
Defendant filed a notice of appeal and requested that the district court issue
a COA and grant him leave to proceed on appeal in forma pauperis. The district
court denied both requests. On appeal, Defendant has renewed his request for a
COA and for leave to proceed in forma pauperis.
II.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). In other words, a federal prisoner may appeal from the denial of a §
2255 motion only if the district court or this court first issues a COA. 28 U.S.C.
§ 2253(c)(1). A COA may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. § 2553(c)(2). In order to
make such a showing, a federal prisoner 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. McDaniel, 529 U.S. 473,
484 (2000) (citation and internal quotation marks omitted).
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Having reviewed the record, we agree with the district court that
Defendant’s waiver of his appellate rights was knowing and voluntary. We
further agree with the district court that the waiver bars Defendant’s claims, and
that enforcement of the waiver would not result in a fundamental miscarriage of
justice. See United States v. Hahn, 359 F.3d 1315, 1325-29 (10th Cir. 2004) (en
banc). The waiver in the plea agreement precludes Defendant’s § 2255 motion.
The motion for leave to proceed on appeal in forma pauperis and the
request for a COA are DENIED and the matter is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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