United States v. Hill

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 29, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 15-5003
(D.C. Nos. 4:14-CV-00439-GKF-FHM and
KELLY MAURICE HILL, 4:10-CR-00165-GKF-1)
(N.D. Okla.)
Defendant - Appellant.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
_________________________________

Kelly Hill, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s order denying his habeas corpus

petition filed under 28 U.S.C. § 2255. For all reasons stated below, we deny a COA

and dismiss this appeal.

BACKGROUND

A. Events Leading to Guilty Plea

On October 12, 2010, a grand jury in the Northern District of Oklahoma returned

an indictment charging Hill with conspiracy to distribute 100 kilograms or more of

marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(vii). A few months

*
This order is not binding precedent, except under the doctrines of law of the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.
before this, Hill—represented by retained counsel, Steven Scharg—began

cooperating with the government, attending several debriefing sessions, and

providing information.

On February 8, 2010, Hill and his counsel flew together from Michigan (where

Hill lived) to Oklahoma for Hill to enter a guilty plea to the charges. Once there,

Hill told his counsel that he no longer wished to plead guilty. Responding to the

district court’s questions, the prosecutor said that Hill had “basically entered into a

verbal plea agreement, if you will, well over seven months ago” and referenced

earlier debriefing sessions with Hill sometime before June 2010 through about

December 14, 2010. R. vol. III at 6–7, 12. The government then told the court that

on January 5, 2011, “one of the principal witnesses in my case was murdered in

Detroit and another witness, deceased, wife was attempted murdered.” R. vol. III at

7. He further advised the court that he “had another witness who was ambushed and

by mistaken identity his father was grave – not gravely, but seriously injured.” Id. In

addition, the prosecutor told the court that he intended to supersede Hill’s indictment

to add defendants.

Having heard these responses to its questioning, the district court called counsel

to the bench and asked Hill’s counsel whether “given that there is no cooperation

agreement here, is the concern of Mr. Hill that he might be perceived, if he does not

go to trial, as having cooperated?” Id. at 8. Hill complains in his habeas proceedings

about Scharg’s response to the court’s question. Scharg responded, “Your Honor, I

think his position is he thinks that the government doesn’t have enough witnesses to

2
proceed against him in trial at this point,” continuing, “[a]nd he just thinks they

can’t prove his case being beyond a reasonable doubt.” Id. at 8–9. The prosecutor

then told the court that he had heard that “Hill’s mother, who is also an unindicted

coconspirator, found a shoe box on her car hood in Detroit with two dead rats in it

with a note that allegedly said, ‘Your son’s next.’” Id. at 10. The prosecutor said that

the two shootings had similarities, apparently both involving AK-47s. The

prosecutor asked that Hill now be detained. The district court sent that question to

the magistrate judge who had held the earlier detention hearing when Hill was

cooperating.

On February 9, 2011, the magistrate judge issued a detention order detaining Hill

until a further hearing could be held on February 15, 2011. In its order, the

magistrate judge reviewed a number of matters brought to his attention. In

particular, he noted that a husband and wife (Corry and LaTonya Thomas) charged

in a case related to Hill’s had agreed to testify against Hill regarding an attempted

shooting at their home (with their two young children) where gunmen fired 19

rounds from an AK-47 into their master bedroom. Fortunately, no one was injured.

A federal agent then flew to Detroit to meet with the couple, who agreed to go into

custody and identified Hill as the person they believed responsible for the shooting.

On January 5, 2011, before entering protective custody, the couple returned home

for some belongings. Once there, two or three men firing guns (one apparently an

AK-47) ambushed them. These gunmen killed the husband and wounded the wife’s

3
mother, but the wife somehow escaped injury.1 In addition, the magistrate judge

noted that on January 11, 2011, the father of another witness in Hill’s case (witness

Joshua Wheeler) was ambushed with gunfire while driving his son’s car. This left

just one of the government’s substantive witnesses against Hill untargeted for attack.

Also, the magistrate judge noted that law-enforcement officers had detained Hill for

several days after the attacks but later released him uncharged. Finally, the

magistrate judge said that two confidential informants told the Drug Enforcement

Agency (DEA) office in Detroit that they had heard that Hill had taken credit for the

shootings. The federal prosecutor did not learn of Hill’s alleged statements until

February 7, 2011, and soon after filed the motion for detention.

B. Hill Enters a Guilty Plea

By March 7, 2011, Hill had apparently rethought his decision not to plead guilty.

On that day, he filed a “Petition to Enter Plea of Guilty and Order Entering Plea.” In

the petition, Hill wrote his factual basis as follows: “I, Kelly Hill, conspired with

other[s] to distribute marijuana in the Detroit[,] Michigan area. I conspired with

others to have marijuana transported from Phoenix[,] Arizona to Detroit, Michigan

starting in Nov[.] 2008 through December 2009.” R. vol. II at 64. In response to the

petition form’s bolded direction that he “[l]ist any and all advice or

recommendations by your attorney upon which you rely in entering your plea of

1
The husband and wife were the same people stopped on June 22, 2009 by the
Oklahoma Highway Patrol, carrying 265 kilograms of marijuana back to Detroit.
They immediately began cooperating with law enforcement. They had transported
about 5 loads of marijuana for Hill. Hill put money on their credit cards or gave
them cash for the trips.
4
guilty,” Hill wrote, “I made my own decision to plead guilty.” Id. The petition form

contained sections captioned “Waiver of Constitutional Rights,” and “Minimum

Sentence and Mandatory Minimum Sentence,” the second advising Hill that his

offense was punishable for 5 to 40 years of imprisonment, a fine up to $2,000,000,

and a term of supervised release of at least 4 years. In a “Sentencing” portion of the

petition form, Hill wrote “None” in response to a direction to “[i]nsert any promises

or concessions made to the defendant or to his/her attorney.” Id. at 67. He further

acknowledged knowing that “the sentence I will receive is solely a matter within the

control of the Judge. I hope to receive lenience, but I am prepared to accept any

punishment permitted by law which the Court sees fit to impose.” Id.

As part of this same petition form, Scharg was also required to sign after

agreeing (1) that Hill’s declarations were accurate and true, (2) that he had advised

Hill of the provisions of advisory guideline sentencing, (3) that Hill understood that

the court could impose a non-guideline sentence, and (4) that in his opinion Hill

would voluntarily and knowingly plead guilty. For a direction to identify any

“predictions or promises to the defendant concerning any sentence the Court may

award,” Scharg wrote, “N/A.” Id. at 68.

In his habeas petition, Hill relies heavily on the following notation on the bottom

of the first page of the petition form: “57-71 Level 25.” Id. at 63. It appears that the

number originally was 28 and a 5 was inserted over the 8. From the petition itself,

we are unable to tell who wrote that notation or when it was written.

5
 Also on March 7, 2011, in tandem with the petition form, Hill pleaded guilty to

the charged count of conspiracy to possess with intent to distribute and conspiracy to

distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846 and

841(a)(1), (b)(1)(B). Under his written plea agreement, Hill waived both his direct-

appeal and collateral-attack rights. Specifically, he agreed to “waive[] the right to

collaterally attack the conviction and sentence pursuant to 28 U.S.C. § 2255, except

for claims based on ineffective assistance of counsel which challenge the validity of

the guilty plea or this waiver[.]” United States v. Hill, No. 4:10-CR-00165-GKF,

Doc. No. 31, at 3.2 For this waiver paragraph, the government took the precaution of

having Hill sign directly below the waiver paragraph, attesting this statement: “The

defendant expressly acknowledges that counsel has explained his appellate and post-

conviction rights; that defendant understands his rights; and that defendant

knowingly and voluntarily waives those rights as set forth above.” Id.

After signing and dating the plea agreement, Hill signed another

acknowledgment at the end of his plea agreement:

I have read this agreement and carefully reviewed every part of it with my
attorney. I understand it, and I voluntarily agree to it. Further, I have consulted
with my attorney and fully understand my rights with respect to sentencing
which may apply to my case. No other promises or inducements have been
made to me, other than those contained in this pleading. In addition, no one
has threatened or forced me in any way to enter into this agreement. Finally, I
am satisfied with the representation of my attorney in this matter.

2
We take judicial notice of materials from the district court’s habeas record and
the record on appeal from Hill’s direct-appeal case. See Anderson v. Cramlet, 789
F.2d 840, 845 (10th Cir. 1986) (“Judicial notice is particularly applicable to the
court’s own records of prior litigation closely related to the case before it.”).
6
Id. at 15. Moreover, in the plea agreement the government also had Hill’s attorney

sign his own acknowledgment, stating as follows:

I am counsel for the defendant in this case. I have fully explained to the
defendant the defendant’s rights with respect to the pending Indictment.
Further, I have reviewed the provisions of the Sentencing Guidelines and
Policy Statements and I have fully explained to the defendant the provisions of
those Guidelines which may apply in this case. I have carefully reviewed every
part of this plea agreement with the defendant. To my knowledge, the
defendant’s decision to enter into this agreement is an informed and voluntary
one.

Id. at 16.

In addition, at Hill’s change-of-plea hearing, the district court thoroughly

reviewed the plea agreement with Hill before hearing his factual basis and accepting

his guilty plea. Hill also told the court that he had discussed the Indictment with

Scharg and was fully satisfied with his attorney’s representation and advice. Hill

further told the court that he had read and discussed the plea agreement with Scharg

before signing it and that the agreement represented in its entirety his

understandings with the government. Hill added that he understood the plea

agreement’s terms and that no one had made any promises different from those

stated in the plea agreement to gain his guilty plea. In evaluating Hill’s ability to

understand the proceedings, the court accepted Hill’s statement that he was a student

needing just 37 credits to graduate from Wayne State University.

After reviewing the plea agreement’s terms with Hill, the court then directed

Hill’s attention to possible punishments. The district court explained to Hill—and

verified from Hill that he understood—that the court could sentence him anywhere

7
between 5 and 40 years. The court told Hill that it could not determine his sentence

until reviewing the presentence report (PSR) and after hearing his and the

government’s objections to the PSR. The court advised Hill that its sentence may

differ from any estimate his attorney may have given him, and that it could impose

any reasonable sentence not greater than the statutory maximum or less than the

statutory minimum. Hill acknowledged both of these facts. Hill also agreed that he

understood that the court could impose the same punishment whether he pleaded

guilty or instead was convicted by a jury.

Next, the district court reviewed with Hill the plea agreement’s waiver

provisions. The court reviewed each subparagraph of the waiver provision so that it

could “satisfy [it]self that you understand what exactly you’re giving up in regard to

these rights.” Hill, No. 4:10-CR-00165-GKF, Doc. No. 38, at 9. Hill acknowledged

that he and his retained counsel had discussed the waiver of appellate and post-

conviction rights. After doing so, the district court again assured itself that Hill

understood he was giving up his collateral-attack rights.

Next, the district court invited the government to present the facts it would have

proved at trial. The prosecutor began with a June 2009 traffic stop in Oklahoma

where police seized 565 pounds of marijuana headed for Michigan from Arizona.

Those arrested [the Thomases] cooperated with law enforcement, and said they had

made five trips to Phoenix for Hill. Typically, Hill would purchase airline tickets for

them and him from Michigan to Las Vegas or Phoenix and then provide funds on

their debit cards to Detroit, where Hill would meet them. Hill then would distribute

8
the marijuana to others for money. The government was ready to corroborate this

with airline, hotel, and rental-car records. Finally, the prosecutor said that the

government was prepared to prove and rely on an Oklahoma highway-patrol stop

where law enforcement seized $198,000 of marijuana-buy money that was heading

from Detroit to Phoenix to buy marijuana. This was representative of several other

money shipments to buy marijuana for sale in Detroit.

Taking Hill’s guilty plea immediately after the prosecutor’s summary of its

evidence, the court again assured itself by questioning Hill that his “guilty plea and

the waivers of [his] rights [were] made voluntarily and completely of [his] own free

choice, free of any force or threats or pressures from anyone.” Hill, No. 4:10-CR-

00165-GKF, Doc. No. 38, at 20. Hill also stated that he was not “relying on any

representations or promises which are not clearly and specifically set forth in the

written plea agreement.” Id.

C. Hill’s Pre-Sentencing Events

On May 31, 2011, the probation office approved Hill’s Revised PSR. Its

sentencing recommendations were straightforward. Because Hill’s offense had

involved more than 400 kilograms of marijuana (543.55 kilograms), his base offense

level was 28. In addition, the probation office recommended a 4-level increase for

Hill’s role in the offense, specifically finding that he was an organizer or leader of

criminal activity involving five or more participants.3 In addition, the probation

3
As participants, the government identified people Hill paid to transport
marijuana and cash between Arizona and Michigan, namely, the Thomases, Aaron
9
office recommended against any reduction for acceptance of responsibility, noting

that Hill continued after detention to use mail and telephones to “advise co-

conspirators on hiding and concealing assets and drug proceeds, and also gave

directives on carrying out transactions with other co-conspirators.” United States v.

Hill, No. 12-5192, R. vol. IV at 105. Using information learned from Hill’s recorded

jail calls, agents obtained a search warrant for his girlfriend’s house and a storage

unit, where they seized incriminating letters, drug notations, and cash. Id. After the

search, Hill called his girlfriend to tell her not to keep letters and to delete two

phone numbers from his cell phone. In addition, the PSR calculated Hill’s criminal

history category as II based on earlier convictions for larceny and fleeing police.

The revised PSR recommended a Guidelines range of 135–168 months’

imprisonment.

On June 3, 2011, five days before his scheduled sentencing, Hill filed a pro se

letter with the court. Having seen the PSR’s recommendations, Hill for the first time

complained about Scharg. Directly contrary to his representations to the court at his

change-of-plea sentencing, Hill now claimed that Scharg and the prosecutors had

promised him a sentence of between 57 and 71 months. He also claimed that he had

not fully understood his post-sentencing waivers, because Scharg had not explained

Cook (who together with Hill’s grandmother was stopped by the Oklahoma Highway
Patrol in a van rented by Hill’s mother with $198,000 Hill had put in a TV set for
marijuana purchase). In addition, Hill paid Joshua Wheeler to store drug proceeds
and to transport money to Phoenix at Hill’s direction. In addition, Hill paid Yusuf
Rashid to distribute marijuana and cocaine for him. Finally, Hill used his girlfriend,
Deja Howard, to try to gather his money while he was detained pending trial. Hill
also used Samuel Clay, his brother, to help collect money while Hill was detained.
10
them to him. Again contrary to his earlier statements to the court, Hill claimed that

he had been tricked into signing his plea agreement because he had insufficient time

to review it.

The district court construed this letter as a motion for new counsel and as a

motion to withdraw his guilty plea. In evaluating whether Hill’s letter merited relief,

the court looked to the seven factors set out in United States v. Garcia, 577 F.3d

1271, 1273–74 (10th Cir. 2009), and, after applying them, enforced the plea

agreement. In doing so, the district court referred to and relied on several of Hill’s

statements at his change-of-plea hearing that were directly contrary to his letter’s

claims.

On June 1, 2012, the probation office issued an Addendum to the PSR,

addressing both parties’ objections. The government stated two objections. First, it

argued that the probation office had erred by not adding two offense levels under

U.S.S.G. § 3C1.1 for Hill’s obstruction of justice. It relied on evidence from Hill’s

detention hearings about his involvement in the shootings against the Thomases and

Wheeler’s father in Detroit. It referenced Hill’s supposed statement on February 8,

2011, that he wanted a trial because “there would not be any witnesses left to testify

at trial.” R. vol. II at 36. The government also relied on several recorded jail calls

between Hill and his girlfriend directing her to collect and hide drug proceeds,

remove evidence, and conceal assets and cash. Even so, the probation office still

refused to impose the obstruction-of-justice enhancement, contending that Hill’s

activity “must have materially hindered the official investigation or prosecution of

11
the instant offense or sentencing of the defendant.” Hill, No. 12-5192, R. vol. IV at

115. Second, the government argued that Hill was ineligible for an acceptance-of-

responsibility reduction. The probation officer noted that the Revised PSR no longer

awarded Hill that reduction.

Hill objected on multiple grounds: first, to the government’s use of Hill’s

information provided in Rule 11 proffers; second, to the weight of the marijuana the

PSR attributed to his involvement in the offense; third, to the role-in-the-offense

enhancement under U.S.S.G. § 3B1.1; and, fourth, to the failure in the Revised PSR

to award him any levels for acceptance of responsibility under § 3E1.1. The

probation office rejected each objection.

D. Hill’s Sentencing Hearings

On June 8, 2012, the district court held what turned out to be a first sentencing

hearing. By this time, Julia O’Connell had replaced Scharg as Hill’s counsel. The

government first called Yusuf Rashid to testify. Rashid admitted two previous

felony convictions for possessing marijuana with intent to deliver, one in 2003 and

the other in 2010. Rashid testified that he had known Hill for about three years, first

as one of his marijuana buyers and later as his marijuana supplier. He said that he

had begun buying 20-pound bales of marijuana from Hill and increased to buying as

much as 80-pound bales, paying $925 to $975 a pound. He estimated about 20 to 25

total buys from Hill. He also testified to buying from Hill about 3 or 4 kilograms of

cocaine.

12
 Rashid recalled a time when Hill visited his home and visited with him in the

basement for privacy.4 During this visit, Hill told him that he was looking for

someone to “take care of this fat guy and his—and a girl down in—it was down in

Ecorse.” Hill, No. 12-5192, R. vol. II at 33–34. After Rashid said he didn’t know

anyone to do that, Hill took him to a store and bought him a cell phone to call him if

he found someone or needed to talk about buying drugs. Rashid understood that Hill

wanted the fat man and girl murdered before Christmas because “the guy was

supposed to go in protective custody.” Id. at 35. He described Hill as calm and

serious. He said that Hill mentioned a $5,000 price for the murder of the fat guy.

The government next called DEA Agent Jillian Fitch to testify. She testified that

she interviewed Hill in 2010. She recalled that on January 4, 2011, she received a

call from Agent Cory Hallum, telling her about the shooting at the Thomas house in

Ecorse, Michigan. She referenced the 19 rounds fired into the Thomases’ master

bedroom. She said that on January 5, 2011, Agent Hallum met with Mr. Thomas and

that Mr. Thomas was shot to death later that day when he and his wife and her

mother returned to the house to collect belongings before being relocated. Men with

assault rifles ambushed the three, killing Mr. Thomas and also shooting and injuring

Mrs. Thomas’s mother.

The government then directed Agent Fitch’s attention to Hill’s recorded jail calls.

Agent Fitch testified about Hill’s call to his girlfriend on February 8, 2011, the day

4
At the second phase of the sentencing hearing, the government clarified that
this meeting had occurred in December 2010.
13
he was detained. During that call, he directed his girlfriend to take a phone to “Fat

Boy” and to take the “275” and “297” to a “safety security box” or to where they

had previously been kept. Based on her experience and training, Agent Fitch

testified that “275” likely referred to $275,000. Based on the jail calls, DEA agents

in Detroit were able to surveil Hill’s girlfriend and her mother—sometimes in real

time—as they drove to different locations in accordance with Hill’s directions.

Using the information from Hill’s recorded jail calls and other information

gained in the investigation, Agent Fitch obtained two search warrants for residences.

She testified that agents seized certain letters from Hill at both locations. In addition,

agents seized $25,000 in currency, a small amount of marijuana, and a folder with

notes and ledgers. One document agents seized was Hill’s February 17, 2011 letter

to his girlfriend directing her to see Fat Boy and get “440” (referring to $440,000)

and go straight home. In the letter, he told her to find a place where robbers or the

police wouldn’t find the “440.” In another letter, Hill directed his girlfriend to wrap

it like he used to after she got it from Fat Boy and to have her mother put it in four

different banks, inside safety deposit boxes. He told her to keep “30” from the “380”

and to use a shrink-wrap machine to wrap and divide it. Hill directed her to see Fat

Boy in person because he believed that agents tapped her phone. Agent Fitch also

testified about Hill’s recorded jail call on March 9, 20115 to his girlfriend in which

he expressed anger that she had kept letters from him that the police were able to

5
This jail call occurred after Hill had pleaded guilty, violating the plea
agreement’s condition on acceptance-of-responsibility levels, namely, that he
continue to manifest acceptance of responsibility as determined by the United States.
14
find and take. He later told her to read a letter and then burn it. Again from jail, Hill

later instructed his girlfriend to retrieve a telephone from a coat pocket and erase

two numbers from it. During cross-examination of Agent Fitch, Ms. O’Connell

asked the court for a moment, it appearing that she might be suffering a serious

medical problem. After she had left to seek treatment, the government advised that

its case agent was going to Afghanistan for three weeks and asked for a setting on

August 2, 2012, to continue the sentencing. The court tentatively set sentencing to

continue on that date.

On August 2, 2012, the court held the second part of the sentencing hearing.

After Ms. O’Connell finished cross-examining Agent Fitch, the government called

DEA Agent Cory Hallum. Agent Hallum testified that he was the primary case agent

on Hill’s case since 2009. He reviewed in detail Hill’s role in the conspiracy and

roles he assigned others before and during his detention.

Because Hill chose not to call any witnesses, the court then turned to the parties’

objections to the PSR. Ms. O’Connell waived Hill’s argument about drug weight,

agreeing that her argument about the conversion of cash amount to marijuana

amounts would not affect the base offense level. She described her earlier objection

about the government’s use of proffer information as “neither here nor there.” She

continued to object to the role-in-offense enhancement and the failure to provide a

reduction for acceptance of responsibility. Addressing the acceptance-of-

responsibility argument first, Ms. O’Connell argued that “[o]nce he accepted that

plea agreement, he did what was required of it and he continued from that moment

15
forward to manifest acceptance of responsibility.” Hill, No. 12-5192, R. vol. III at

67. Moving to the role-in-offense enhancement, she argued that Hill was not a leader

or organizer, but instead one with “a reduced management or supervisory role in the

offense.” Id. For this reason, she argued that “the more appropriate role in the

offense would be found in [§] 3B1.1(b).” Id. at 68. Had Hill prevailed in that regard,

he would have received a three-level enhancement instead of the PSR’s

recommended four levels.

The district court rejected both of Hill’s objections. First, for the role-in-offense

objection, the court concluded that Hill was a leader or organizer of criminal activity

involving 5 or more participants. It noted his role in providing others with cash,

automobiles, accommodations, and drop-off points for cars, money, and drugs. The

court found that after delivering the marijuana to his buyers, Hill would pay a

smaller portion of the proceeds to the other participants. Second, for the acceptance-

of-responsibility objection, the court noted that after Hill pleaded guilty on March 7,

2011, he called his girlfriend from jail and told her to read and burn particular letters

from him and to delete two phone numbers for a cell phone inside his coat pocket.

Next, the court addressed the government’s objection that the PSR had not

included an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The

court agreed with the government, relying in part upon its finding by a

preponderance of the evidence from Yusuf Rashid’s testimony that Hill offered to

pay $5,000 to murder a man who was about to enter protective custody. Despite this

finding, the court sentenced Hill at the low end of his resulting advisory range of

16
168 to 210 months of imprisonment (rejecting the government’s recommendation for

the high end). The court did so after Hill apologized to the court for committing the

charged offense. During his remarks, Hill said to his counsel, Ms. O’Connell, “You

did a great job today.” Hill, No. 12-5192, R. vol. III at 76. Nowhere in his remarks

to the court did Hill claim his present or past counsel had deceived him or otherwise

poorly performed. Nor did Hill protest his 168-month sentence as beyond what his

former counsel, Mr. Scharg, and the government had promised him before he

pleaded guilty.

E. Hill’s Direct Appeal

Notwithstanding his appeal waiver, Hill appealed “his sentence,” seeking

consideration and relief on grounds that the government had breached his plea

agreement. United States v. Hill, 568 F. App’x 549, 552 (10th Cir. 2014)

(unpublished). Reviewing for plain error, this court agreed with Hill and found that

the government had breached its plea agreement in one respect. The Hill court

focused on paragraph 11 of the plea agreement, particularly on one sentence reading,

“The obligations of the Government herein, relative to acceptance of responsibility

are contingent upon the defendant’s continuing manifestation of acceptance of

responsibility as determined by the United States.” Id. at 553 (emphasis in original).

Because the government had referenced and in part relied upon pre-plea conduct of

Hill’s to support the obstruction-of-justice enhancement under § 3C1.1, we

concluded that it had run afoul of its agreement to deny an acceptance-of-

responsibility reduction only for post-plea obstruction of justice (the Hill court’s

17
treating “continuing” as reaching obstructive conduct occurring only after Hill’s

guilty plea on March 7, 2011).6 Id. Even so, the court denied Hill any relief,

concluding that he could not meet the third prong of the plain-error analysis—that is,

he could not show that the error affected his substantial rights. Id. at 553–54. He

failed because the government had also presented post-plea obstructive conduct that

equally justified the obstruction-of-justice enhancement under U.S.S.G. § 3C1.1. We

affirmed Hill’s 168-month sentence.

F. Hill’s Habeas Petition in District Court

On September 22, 2014, Hill filed in the district court an amended motion under

28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In support of his

motion, his accompanying memorandum alleged three grounds supporting his

petition:

Ground one: Ineffective Assistance of Trial Counsel

Trial counsel was ineffective when, prior to the plea negotiation, counsel
secretly provided the government with fabricated incriminating information
against the Defendant causing the Defendant to involuntarily waive his right
to collaterally attack his sentence.

Ground two: Ineffective Assistance of Sentencing Counsel

6
The government’s problem was its plea-agreement wording, not anything in the
sentencing guideline. Under the guideline, a defendant obstructing justice is
generally ineligible for acceptance-of-responsibility levels whether the obstructive
conduct comes before or after entry of a guilty plea: “Conduct resulting in an
enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted responsibility for his
criminal conduct. There may, however, be extraordinary cases in which adjustments
under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, n.4.
18
 Sentencing counsel was ineffective when failing to inform the Defendant he
could testify at sentencing in his own defense against allegations of criminal
conduct.

Ground three: Ineffective Assistance of Counsel

Whether counsel was ineffective for failing to request that the court make a
finding of breach of the plea agreement by the Petitioner or the Government
before allowing the Government to alter its sentencing recommendation.

R. vol. I at 136. In evaluating these claims, the district court directed its attention to

Hill’s waiver of his right to seek habeas relief under § 2255:

In consideration of the promises and concessions made by the United States in
this plea agreement, the defendant knowingly and voluntarily agrees to the
following terms:

***

d. The defendant waives the right to collaterally attack the conviction
and sentence pursuant to 28 U.S.C. § 2255, except for claims based on
ineffective assistance of counsel which challenge the validity of the guilty
plea or this waiver[.]

R. vol. I at 230.

Next, the district court examined Hill’s habeas claims against this waiver

language to determine what claims, if any, survived Hill’s agreed waiver. It found

one survivor, concluding that Hill’s first claim alleging ineffective assistance of

counsel during plea negotiations challenged the validity of the plea agreement and

thus escaped the plea agreement’s waiver. See United States v. Cockerham, 237 F.3d

1179, 1184 (10th Cir. 2001) (excluding from an appellate waiver ineffective-

assistance-of-counsel claims “not relating to the validity of the plea, i.e., the

negotiation or entering of the plea and waiver”). But the district court determined

19
that Hill’s other claims—based on alleged ineffective assistance of counsel at

sentencing—did not challenge the validity of the plea agreement’s waiver. In

seeking a COA from this court, Hill focuses solely on his first ground and does not

raise here the second and third grounds he made in district court.

In district court, Hill alleged that during plea negotiations his counsel, Scharg,

ineffectively assisted him by guaranteeing him a sentence between 57 and 71

months, all while knowing Hill’s sentence would be higher because of “fabricated

evidence” Scharg had earlier supplied the government. Hill claimed that this

evidence led to his receiving an obstruction-of-justice enhancement under U.S.S.G.

§ 3C1.1, which in turn defeated his reduction for acceptance of responsibility under

§ 3E1.1. Had he known of his counsel’s misdeeds, Hill says, he never would have

pleaded guilty or waived his right to pursue relief under 28 U.S.C. § 2255.

In addressing Hill’s claim, the court began by reciting the familiar two-pronged

test for ineffective-assistance-of-counsel claims set out in Strickland v. Washington,

466 U.S. 668, 687 (1984). Specifically, the court noted that Hill needed to establish

“both that his attorney’s representation was deficient and that he was prejudiced by

that deficiency.” R. vol. I at 246 (quoting James v. Gibson, 211 F.3d 543, 555 (10th

Cir. 2000)). The district court further noted that “[t]here is a strong presumption that

counsel provided effective assistance, and a section 2255 defendant has the burden

of proof to overcome that presumption.” Id. at 246–47 (quoting United States v.

Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000)).

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 Next, the district court examined Hill’s contentions. It noted that Hill claimed

that his counsel had written on the bottom of his guilty-plea petition a guaranteed

offense level of 25, together with a guideline range of 57 to 71 months. The court

acknowledged that these numbers are in fact written on the bottom of the first page

of that petition. The court recounted that “Hill insists that he ‘would not have

entered into the waiver’ if he had known his counsel’s alleged representations were

false.” R. vol. I at 247 (quoting R. vol. I at 147).

But the district court still rejected this claim on the merits, emphasizing Hill’s

statements at the change-of-plea hearing. Among other things, Hill verified there

that he had received a copy of his indictment; had discussed the charges with his

attorney; had read and discussed the plea agreement with his attorney; and

understood the terms of the plea agreement, including its appellate-waiver

provisions, which prevented collateral attacks on his conviction under 28 U.S.C.

§ 2255 except for ineffective-assistance-of-counsel claims challenging the validity

of his plea or waiver. The court again also relied upon Hill’s specifically signed

waiver of any collateral attacks under § 2255 under the plea agreement.

DISCUSSION

Before Hill can appeal the district court’s decision, he must obtain from this

court a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only if a petitioner

makes a “substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2). This standard requires a “showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

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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). Where a district court rejects the petitioner’s

constitutional claims on the merits, the “petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the [petitioner’s] constitutional

claims debatable or wrong” to obtain a COA. Id. Here, we conclude that reasonable

jurists would not debate whether the district court properly denied Hill’s ineffective-

assistance-of-counsel argument.

Hill argues throughout his COA motion that Mr. Scharg provided false

information against Hill to the government and the court, causing the district court

to increase Hill’s sentence for an obstruction-of-justice enhancement under U.S.S.G.

§ 3C1.1. As we understand it, Hill builds this claim upon two sources. First, as noted

above, at the failed change-of-plea hearing on February 8, 2011, Mr. Scharg

responded to the district court’s question about whether Hill’s unexpected decision

not to proceed with his guilty plea resulted from fear about his having earlier

cooperated with law enforcement. Mr. Scharg advised, “Your Honor, I think his

position is he thinks that the government doesn’t have enough witnesses to proceed

against him in trial at this point.” R. vol. III at 8. Second, Hill relies on a statement

in the government’s objection to the original PSR. There, the government

represented that among other evidence heard at Hill’s detention hearing immediately

after the failed change-of-plea hearing, “[e]vidence was also presented that

established the defendant stated on February 8, 2011, the day he was scheduled to

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enter a plea of guilty, that he wanted a ‘trial’ because ‘there would not be any

witnesses left to testify at trial.’” R. vol. II at 36. From this, it appears that the

government in its objection exaggerated what Mr. Scharg had actually told the

district court.

Hill presents his argument as if Mr. Scharg’s statement was the sole basis on

which the magistrate judge detained him, and on which the district court later

imposed the obstruction-of-justice enhancement. Among other things, he ignores the

preceding language in the government’s objection to the PSR:

During that hearing [the February 8, 2011 detention hearing], the Government
presented evidence relating to the January 5, 2011, murder of Corry Thomas, a
Government witness in the investigation and prosecution of the defendant.
During the detention hearing, evidence was presented that the defendant
offered $5,000 for the murder of Corry Thomas. Evidence was also presented
relating to the January 11, 2011 shooting and attempted assassination attempt
of another Government witness, Joshua Wheeler. During that shooting, his
father-in-law was shot multiple times, however, he survived. Further, there
was evidence presented that because of these shooting incidents, the
Government was forced to relocate several other Government witnesses and
their families.

R. vol. II at 35–36. This summary makes apparent that the government was fully

aware of the scope of violence against witnesses in Hill’s case long before Scharg

responded to the district court’s question about why Hill no longer wished to plead.

In addition, the district court did not impose obstruction-of-justice levels based

on any statement Scharg uttered. Instead, the district court looked elsewhere. At the

sentencing hearing, the district court heard directly from Yusuf Rashid about Hill’s

efforts to find someone to kill Mr. Thomas. The district court applied the

obstruction-of-justice enhancement after finding Rashid sufficiently credible to

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support a preponderance finding that Rashid’s account “ought to be believed.” Hill,

No. 12-5192, R. vol. III at 76. Because the obstruction issue was a difficult one, the

court “want[ed] to make it very clear as to the basis for the obstruction ruling. . . .”

Id. Simply put, Hill received obstruction-of-justice levels based on his own conduct,

not based on any of Scharg’s statements.

In addition, Hill bases his Sixth Amendment ineffective-assistance-of-counsel

argument upon the government’s and Scharg’s supposedly securing his guilty plea

by deceiving him into believing that he was guaranteed a sentence between 57 and

71 months of imprisonment. As support, he offers a meager hand-written notation at

the bottom of the first page of his petition to plead guilty. Although that notation

implicitly describes an offense level of 28 minus 3 levels for acceptance of

responsibility, which if combined with an unstated criminal history category I,

would yield an advisory sentencing range of 57 to 71 months, nothing shows any

sort of guarantee. And rightly so. Indeed, at sentencing Hill conceded that his base

offense level alone was 28 (instead of 26 as he first contended in objecting to the

original PSR), argued for three additional levels (rather than four) for his role in the

offense under § 3B1.1, and did not oppose the PSR’s assigned criminal history

category of II.

Nor was Hill free to harbor some supposedly secret deal between him, his

counsel, and the government for a sentence far below the likely advisory range. As

stated in the district court’s thorough review, Hill had both in writing and in person

at his change-of-plea hearing repeatedly told the district court that he had been

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promised nothing outside of the plea agreement and that he fully understood that he

could be sentenced for up to 40 years of imprisonment. Hill repeatedly

acknowledged accepting the plea agreement’s terms knowingly and voluntarily, and

he cannot now casually brush aside his many representations to the district court.

See Cockerham, 237 F.3d at 1188–89 (holding that defendant “entered the plea and

made the waiver knowingly and voluntarily” in view of defendant’s statements in

the plea agreement and during the plea colloquy about his understanding the plea

agreement’s terms).

Finally, in vague terms, Hill contends that his Sixth Amendment rights were

violated because his retained counsel, Scharg, labored under a conflict of interest

during his representation. As we understand it, Hill argues that by informing the

district court why Hill no longer wished to plead guilty on February 8, 2011, Scharg

succumbed to or manifested “divided loyalties” that prevented his providing Hill

effective assistance of counsel. From our review of the record, we see that Mr.

Scharg represented Hill’s interest at every step of the proceedings until leaving the

case. Accordingly, we see no merit to Hill’s conflict-of-interest claim.

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 CONCLUSION

We deny Hill’s request for a COA and dismiss this appeal.

Entered for the Court

Gregory A. Phillips
Circuit Judge

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