FILED
United States Court of Appeals
Tenth Circuit
October 27, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4090
(Case No. 2:07-CV-00158-TS)
CAILE E. NOBLE, (D. Utah)
Defendant-Appellant.
ORDER *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Appellant, a pro se federal prisoner, seeks a certificate of appealability to
appeal the district court’s denial of his § 2255 habeas petition. Appellant pled
guilty in the District of Utah to possession of methamphetamine with intent to
distribute. In his plea agreement, he waived his right to appeal or collaterally
attack the sentence imposed unless it was above the maximum statutory limit or
involved an “upward departure from the final sentencing guideline range
determined by the Court.” (R. Vol. I at 40.) The district court calculated a
guideline range of 188 to 235 months and imposed a sentence at the bottom of
*
This order is not binding precedent, except under the doctrines of law of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.
this range. Appellant then filed a direct appeal in this court, but we held that the
plea agreement was valid and enforceable, and we therefore dismissed the appeal.
See United States v. Noble, 175 F. App’x 185 (10th Cir. 2006).
Appellant then filed a § 2255 habeas petition asserting various claims
relating to his sentence, the plea agreement, and the conduct of defense counsel
and the prosecuting attorney. The district court held that Appellant’s claims were
waived except as they related to the validity of his plea or the waiver of appellate
rights. See United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001).
As for Appellant’s claims that his attorney coerced him into signing the plea
agreement by indicating that he would receive a sixty-month sentence and failed
to properly investigate Appellant’s criminal record to discover that he would
likely receive an eight-level career criminal enhancement, the district court
concluded that Appellant had not satisfied the standard for showing ineffective
assistance of counsel. The court noted that there was no evidence of coercion and
that Appellant had proffered no reason why he did not inform his counsel about
his criminal history. When a defendant withholds the information required to
trigger an investigation into his criminal history, counsel’s failure to conduct an
independent investigation and the related failure to correctly calculate the
potential sentencing range do not constitute deficient representation. See United
States v. Rhodes, 913 F.2d 839, 843-46 (10th Cir. 1990). The district court also
concluded that Appellant had not demonstrated prejudice because he had not
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shown a reasonable probability that, but for counsel’s alleged errors, he would
have insisted on going to trial. If Appellant had gone to trial and been convicted,
he would have faced a guideline range of 262-327 months’ imprisonment, a
significant increase from the 188 month guideline sentence he actually received.
Moreover, Appellant pled guilty after being informed by the court that its final
calculation of his sentence might differ from any calculation made by his
attorney, and we found no prejudice in such circumstances in the unpublished
case of United States v. Gordon, 289 F. App’x 302, 304 (10th Cir. 2006).
To obtain a certificate of appealability, Appellant 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, he 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)
(internal quotation marks omitted).
After carefully reviewing Petitioner’s filings in this court, the district
court’s disposition, and the record on appeal, we conclude that reasonable jurists
would not debate the district court’s dismissal of Petitioner’s claims. Therefore,
for substantially the reasons set forth in the district court’s thorough decision and
order, we DENY Petitioner’s request for a certificate of appealability and
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DISMISS the appeal. We GRANT his motion for leave to proceed in forma
pauperis.
Entered for the Court
Monroe G. McKay
Circuit Judge
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