FILED
United States Court of Appeals
Tenth Circuit
July 19, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-6047
v. (W.D. Oklahoma)
RODNEY ANTONIO ALEXANDER, (D.C. Nos. 5:10-CV-00085-M and
5:08-CR-00109-M-1)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Defendant Rodney Antonio Alexander, appearing pro se, requests a
certificate of appealability (COA) to appeal the district court’s denial of his
motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B)
(requiring COA to appeal dismissal of § 2255 motion). We deny his request for a
COA and dismiss this appeal.
I. BACKGROUND
On June 19, 2008, Defendant executed a plea agreement and pleaded guilty
in the United States District Court for the Western District of Oklahoma to
possession with intent to distribute methamphetamine, see 21 U.S.C. § 841(a)(1),
and to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). Under
the plea agreement he waived his right to challenge, by appeal or by collateral
attack, his plea or a sentence not exceeding the guideline range, except that he
could challenge the sufficiency of his prior convictions for purposes of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e). After being sentenced to 211
months’ imprisonment, Defendant appealed the district court’s enhancement of
his sentence under the ACCA, and we affirmed. See United States v. Alexander,
333 F.App’x. 388, *1 (10th Cir. 2009).
On January 27, 2010, Defendant filed his § 2255 motion, contending that he
had received ineffective assistance of counsel because his attorney (1) failed to
explain adequately the mechanics of the plea agreement; (2) failed to challenge
the false statements of the witness/informant regarding drug quantities; (3) did
not obtain his input before making decisions; and (4) failed to challenge the
district court’s understanding of the standard operating procedure for prosecutors
regarding cooperation agreements under USSG § 5K1.1. In a later pleading
Defendant appears to expand his first claim by asserting that his counsel used
undue influence to get him to execute the plea agreement. The district court held
that the motion was barred by Defendant’s waiver of his right to collateral relief.
In this court Defendant seeks to appeal the district court’s denial of his
§ 2255 motion. He does not pursue all the issues raised in district court but
argues that his plea was not knowing or voluntary because his attorney was
ineffective in three respects: (1) the attorney filled out the petition-to-enter-plea-
of-guilty form without adequately informing him of alternatives, (2) the attorney
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exerted undue influence, and (3) the attorney did not investigate untrue witness
statements.
II. DISCUSSION
“A certificate of appealability may issue . . . only if the [movant] has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the
merits,” the movant “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the § 2255 motion was denied on
procedural grounds, the movant faces a double hurdle. Not only must the movant
make a substantial showing of the denial of a constitutional right, but he must
also show “that jurists of reason would find it debatable . . . whether the district
court was correct in its procedural ruling.” Id.
The most obvious hurdle for Defendant to overcome in pursuing relief
under § 2255 is the waiver in his plea agreement of his right to pursue a collateral
attack on his conviction or sentence. But even if the waiver is otherwise
enforceable, it “may not be used to . . . deny review of a claim that the agreement
was entered into with ineffective assistance of counsel.” United States v.
Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001) (internal quotation marks
omitted). Thus, some ineffectiveness claims can survive a waiver such as
Defendant’s.
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Turning to Defendant’s first claim—that his counsel did not adequately
inform him of alternatives—we need not resolve whether it comes within the
Cockerham exception to his waiver of collateral-attack rights because it fails on
the merits. To establish a successful claim of ineffective assistance of counsel,
“the defendant must show that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). The prejudice prong requires the defendant to “show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
Defendant has failed to show prejudice arising from his counsel’s alleged
failure to advise him of alternatives. He does not identify any alternatives of
which he was not advised. And his plea colloquy shows that he made an
informed decision to plead guilty. After the government explained the maximum
punishment permitted by law, the district court asked Defendant: “[D]o you now
fully understand both the charges against you and the maximum punishment for
those charges?” R., Vol. 3 at 4. Defendant responded “Yes.” Similarly, the
court determined that Defendant knew that he could receive “the same punishment
as if [he] had pleaded not guilty, stood trial and been convicted,” id. at 6, and it
confirmed that no government agent had “promised or suggested or predicted . . .
that [he] would receive a lighter sentence . . . or . . . any other form of leniency in
exchange for a plea of guilty,” id. at 7–8. Also, the court advised him of his right
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to plead not guilty, to have a speedy and public trial by jury, to be represented by
counsel, to confront witnesses, to call witnesses on his own behalf, to compel the
production of evidence, and to refuse to testify. The government summarized the
relevant terms of the plea agreement and Defendant acknowledged that the
summary accurately represented the agreement. Of particular importance, the
court specifically asked Defendant about the waiver of his right to appeal, stating:
“Tell me in your own words what that means to you. I want to make sure that you
understand what you are giving up in that regard.” Id. at 10. Defendant
responded, “If I’m considered guilty, or whatever my punishment is, I can’t come
back and reinstate another hearing, or something like that.” Id. The court then
asked Defendant to explain in his own words what his waiver of collateral-attack
rights meant. Defendant responded: “That I can’t go through and pick out stuff
and say that y’all didn’t do this, kind of motion-it, to get a lower sentence, or
something like that.” Id.
In short, the plea colloquy was the typical thorough exercise that ordinarily
rebuts postconviction claims of involuntariness. Whatever shortcomings there
may have been in defense counsel’s explanations to Defendant, the colloquy
unequivocally established that he was fully informed of the essentials of his plea
agreement.
As for Defendant’s second-claim—his attorney’s alleged undue
influence—his assertion is conclusory and lacks supporting factual averments.
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Thus, we must assume that he is merely alleging that he was coerced by being
provided inadequate information, a claim that fails because he was fully informed
during the plea colloquy, before his plea was accepted.
Defendant’s third claim—that his plea was unknowing and involuntary
because his attorney did not conduct an adequate investigation of a witness who
provided allegedly false information regarding the amount of drugs that could be
attributed to him for sentencing purposes—also fails because he has not alleged,
much less shown, prejudice. Defendant has not identified any information
favorable to him that he did not know before he pleaded guilty but that his
attorney would have discovered through a proper investigation. It appears that
Defendant’s real complaint is that his attorney did not use the information he
provided to challenge the witness’s veracity and accuracy. But any such failing
occurred post-plea and could not have affected Defendant’s decision to plead
guilty. Therefore, an ineffectiveness claim based on this alleged inadequacy
would not come within Cockerham’s exception to the binding force of
Defendant’s waiver of his right to attack his conviction or sentence in a § 2255
proceeding. See Cockerham, 237 F.3d at 1187 (court can enforce “a waiver of
§ 2255 rights expressly contained in a plea agreement when the collateral attack
does not challenge counsel’s representation in negotiating or entering the plea or
the waiver”).
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No reasonable jurist could debate that Defendant’s § 2255 motion should
have been denied.
III. CONCLUSION
We DENY Defendant’s application for a COA and DISMISS the appeal.
We GRANT Defendant’s motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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