FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 28, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-5159
v. (D.C. Nos. 4:08-CV-00088-TCK-TLW
and 4:05-CR-00091-TCK-5)
CURTIS DEON JONES, (N.D. Okla.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Curtis Deon Jones, a federal inmate proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his motion to vacate,
set aside or correct his sentence. 28 U.S.C. § 2255. Because we conclude that
Mr. Jones has failed to make “a substantial showing of the denial of a
constitutional right,” we deny his request for a COA, and dismiss the appeal. 28
U.S.C. § 2253(c)(2).
Mr. Jones was charged in a multiple-count superseding indictment (along
with nine other defendants) with a racketeering conspiracy including acts of
violence and illegal drug distribution in connection with his membership in the
Hoover Crips gang. Doc. 247; 18 U.S.C. §§ 1962(d), 1963. He pled guilty to a
single count pursuant to a plea agreement in which he waived his right to a direct
appeal and to collaterally attack his conviction and sentence (except for
ineffective assistance of counsel claims challenging the validity of the plea or the
waiver). Doc. 729-2 at 3. He was sentenced to 260 months’ imprisonment. 1 R.
71. His direct appeal to this court was dismissed based on the waiver in his plea
agreement. United States v. Jones, 236 Fed. App’x. 449, 450 (10th Cir. 2007)
(unpublished). Mr. Jones then filed the current motion to vacate, set aside or
correct his sentence, Docs. 806, 894, which the district court denied. United
States v. Jones, Nos. 05-CR-91-005-TCK, 08-CV-88-TCK-TLW, 2010 WL
4809270 (N.D. Okla. Nov. 17, 2010).
To obtain a COA, a 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. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks and citation omitted). Because Mr. Jones is
proceeding pro se, we construe his pleadings liberally. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
On appeal, Mr. Jones contends that the:
a. District court failed to consider important argument[sic] involving
Mr. Jones’s competency to enter a plea of guilty.
b. District court erred in its recitation or understanding of the facts
surrounding the involuntary, forced, and coerced plea agreement.
c. District court failed to consider important argument[sic] that
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supported ineffective assistance claim prior to plea agreement.
Aplt. Br. 6-7.
Mr. Jones asserts that the district court’s failure to conduct a competency
hearing prior to his plea was violative of due process and that his counsel was
ineffective for failing to move for a psychiatric evaluation. Aplt. Br. 7. But the
record is devoid of any indication that Mr. Jones was not competent to enter a
plea, given the court’s inquiry into and Mr. Jones’s responses regarding his
mental health at the plea hearing. See United States v. Crews, 781 F.2d 826, 833
(10th Cir. 1986) (“To raise a substantial question requiring a competency hearing
there must be some evidence to create doubt on the issue.”). Therefore, as Mr.
Jones’s claim pertains to the effectiveness of his counsel–i.e., that counsel
rendered ineffective performance by not making a motion for psychological
examination–there is nothing in the record to suggest counsel’s failure to make
such a motion was unreasonable. A defendant claiming ineffective assistance of
counsel must show that “counsel’s representation fell below an objective standard
of reasonableness” and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 46 U.S. 668, 688, 694 (1984). Here,
counsel’s performance was objectively reasonable given the court’s compliance
with Federal Rule Crim. P. 11 in performing its colloquy and given the lack of
any indication that Jones was not mentally fit to enter a plea. We cannot
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conclude that reasonable jurists could debate the disposition of the petition below.
In addition, the colloquy demonstrates that Mr. Jones’s plea was made voluntarily
and without coercion.
Mr. Jones’s claim that counsel’s statements during sentencing rendered
counsel ineffective relates to sentencing and is, therefore, within the terms of the
waiver. See United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001).
Likewise, his assertion of ineffective assistance based on failure to make a claim
of insufficient evidence and abandonment of a viable defense amounts to a
challenge to his conviction and, thus, was waived.
We DENY a COA and DISMISS the appeal. Any other pending motions
are DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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