FILED
United States Court of Appeals
Tenth Circuit
May 18, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-2202
v.
(D. New Mexico)
(D.C. Nos. 1:13-CV-00966-RB-LAM
MARIO DEVONNE WASHINGTON,
and 2:10-CR-03160-RB-2)
SR.,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
Mario Washington, a federal prisoner, seeks to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
The matter is before this court on Washington’s request for a certificate of
appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be
taken from a “final order in a proceeding under section 2255” unless the movant
first obtains a COA). Because Washington has not “made a substantial showing
of the denial of a constitutional right,” this court denies his request for a COA
and dismisses this appeal. 1 Id. § 2253(c)(2).
Washington was charged in a multi-count indictment with crimes relating
to the distribution of illegal drugs. After Washington’s motion to suppress
evidence was denied in part, he entered into a written plea agreement with the
Government, agreeing to plead guilty to the charge of conspiracy to possess with
the intent to distribute marijuana. The plea agreement also contained a waiver of
Washington’s right to directly appeal or collaterally attack his conviction and
sentence except on the issue of ineffective assistance of counsel in negotiating or
entering into the plea or waiver. 2
Notwithstanding the waiver, Washington filed the instant § 2255 motion
raising a challenge to his sentence, a due process claim based on “outrageous
government conduct,” and multiple claims of ineffective assistance of counsel.
The district court concluded Washington’s claims fell within the scope of the
waiver, and Washington knowingly and voluntarily entered into the plea
agreement and waiver. See United States v. Hahn, 359 F.3d 1315, 1325-27 (10th
Cir. 2004). The district court acknowledged Washington’s § 2255 motion could
1
Washington’s motion to proceed in forma pauperis on appeal is granted.
2
Washington was also permitted to appeal the denial of his motion to
suppress as to a cellular telephone. On direct appeal, this court affirmed the
denial of that motion. United States v. Washington, 536 F. App’x 810, 812 (10th
Cir. 2013).
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be read to contain a challenge to the validity of the plea agreement based on the
ineffective assistance of counsel in connection with its negotiation. See Hahn,
359 F.3d at 1327 (holding enforcing a waiver will result in a miscarriage of
justice if “ineffective assistance of counsel in connection with the negotiation of
the waiver renders the waiver invalid”); United States v. Cockerham, 237 F.3d
1179, 1183 (10th Cir. 2001). The court rejected this claim on the merits.
Accordingly, the district court enforced the waiver and denied Washington’s
§ 2255 motion. The court also denied Washington’s request to amend his § 2255
motion to add a claim relating to the search of his cellular telephone and
Washington’s two motions to dismiss his underlying criminal case, concluding the
claims asserted in all three motions fell within the scope of the waiver.
This court cannot reach the merits of Washington’s appeal unless we first
grant him a COA. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be
entitled to a COA, Washington must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing,
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.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether
Washington has satisfied his burden, this court undertakes “a preliminary, though
not definitive, consideration of the [legal] framework” applicable to each of his
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claims. Id. at 338. Although Washington need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove something more than the absence
of frivolity or the existence of mere good faith.” Id.
Having undertaken a review of Washington’s application for a COA and
appellate filings, the magistrate judge’s recommendation, the district court’s
order, and the entire record on appeal pursuant to the framework set out by the
Supreme Court in Miller-El, this court concludes Washington is not entitled to a
COA. The district court’s resolution of Washington’s § 2255 motion is not
reasonably subject to debate and the issues he seeks to raise on appeal are not
adequate to deserve further proceedings. Accordingly, this court denies
Washington’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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