FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 15, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3254
(D.C. Nos. 2:16-CV-02728-KHV and
PETER PARK, 2:12-CR-20083-KHV-11)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
Proceeding pro se, federal prisoner Peter Park seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
motion.1 Because Park fails to demonstrate that reasonable jurists could debate the
district court’s resolution of his claims, we deny his request for a COA and dismiss
this matter.
In 2013, Park pleaded guilty to conspiring to commit various drug offenses
and to possessing a firearm in furtherance of a drug-trafficking crime. As part of his
*
This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
Because Park appears pro se, we liberally construe his filings. Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
plea agreement, Park waived his right to appeal or collaterally attack his convictions
and his sentence. The plea agreement’s waiver provision contained an exception,
however, for claims alleging ineffective assistance of counsel and prosecutorial
misconduct.
Despite agreeing to waive his appellate rights, Park later appealed his
conviction and sentence. He then voluntarily stipulated to the dismissal of his direct
appeal and, nine months later, filed the instant 28 U.S.C. § 2255 motion.
Construing Park’s § 2255 motion liberally, see Gallagher, 587 F.3d at 1067,
the district court detected 21 distinct claims: claims 1–5 and 8–15 alleged ineffective
assistance of counsel; claims 6, 7, and 16 alleged prosecutorial misconduct; claim 17
asserted that the trial court erred in failing to hold the government to an alleged oral
agreement; claim 18 asserted a Fifth Amendment violation; claim 19 alleged a
violation of Park’s speedy-trial rights; claim 20 alleged that the trial court erred in
accepting the defendant’s plea; and claim 21 argued that the trial court erred in
allowing the government to use unlawfully obtained evidence.2
The district court concluded that claims 17–21 fell within the scope of the plea
waiver and declined to consider them on that basis. It then rejected Park’s remaining
2
Park doesn’t challenge the district court’s characterization of his claims. We
therefore accept that characterization as accurate for purposes of resolving Park’s
COA request.
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claims on the merits, denied his § 2555 motion, and denied him a COA. Park now
seeks to appeal. But first, he must obtain a COA. See 28 U.S.C. § 2253(c)(1)(B).
In determining whether to grant a COA, we take one of two approaches. If the
district court rejected a particular claim on the merits, a petitioner seeking a COA
“must demonstrate that reasonable jurists would find the district court’s assessment
of [that claim] debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). If,
on the other hand, the district court rejected a claim on procedural grounds, the
prisoner must show both (1) “that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling” and (2) “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right.” Id.
Here, the district court took a hybrid approach in analyzing Park’s petition.
First, it rejected claims 17–21 on procedural grounds, concluding that they fell within
the scope of the plea agreement’s waiver provision. Thus, to obtain a COA to
challenge the district court’s resolution of these claims, Park must demonstrate, inter
alia, “that jurists of reason would find it debatable whether the district court was
correct in [this] procedural ruling.” Slack, 529 U.S. at 484.
Yet Park’s opening brief contains “nary a word to challenge” the district
court’s procedural ruling. Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1369 (10th
Cir. 2015). In fact, Park doesn’t even acknowledge the district court’s grounds for
refusing to consider these claims, let alone identify a basis upon which reasonable
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jurists might find the district court’s resolution of these claims debatable. Thus, Park
necessarily fails to make the requisite Slack showing, and we therefore deny him a
COA to appeal the district court’s resolution of claims 17–21.
We turn next to Park’s remaining claims, which the district court rejected on
the merits. As discussed above, Park is entitled to a COA to appeal the district court’s
resolution of these claims only if he demonstrates that “reasonable jurists would find
the district court’s assessment of [them] debatable or wrong.” Slack, 529 U.S. at 484.
Park first asserts that defense counsel was ineffective in advising him to plead
guilty to possessing a firearm in furtherance of the drug conspiracy because Park was
“innocent of th[at] crime.” Aplt. Br. 5.
At the outset, we note that we’re not entirely convinced Park ever raised this
specific claim below; instead, it appears he argued there (in what the district court
treated as claim 15) that defense counsel was ineffective in advising Park “to sign a
plea agreement before discovery concluded.” R. vol. 2, 191. And in determining
whether to grant a COA, we generally decline to review those arguments a petitioner
failed to advance in district court. See United States v. Viera, 674 F.3d 1214, 1220
(10th Cir. 2012)
Nevertheless, even if we assume Park advanced this specific claim below, he
fails to demonstrate “that reasonable jurists could debate whether (or, for that matter,
agree that) [his] petition should have been resolved in a different manner” on the
basis of this claim. Slack, 529 U.S. at 484. “[W]hen a defendant alleges that his
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attorney’s ineffective assistance led him to plead guilty, the test for prejudice is
whether he can show that he would not have pled guilty had his attorney performed
in a constitutionally adequate manner.” Miller v. Champion, 262 F.3d 1066, 1068
(10th Cir. 2001). And to make this showing, a petitioner must—at a minimum—
allege “that he would have insisted on trial but for his counsel’s errors.” Id. at 1072.
Because Park makes no such allegation here, he’s not entitled to a COA on this basis.
Next, Park asserts that the prosecutor committed misconduct by promising to
“take the [§] 924(c) away at sentencing” and then failing to follow through on that
promise. Aplt. Br. 6; see also 18 U.S.C. § 924(c)(1)(A) (providing that any person
who possesses a firearm in furtherance of a drug-trafficking crime “shall, in addition
to the punishment provided for such crime” be subject to additional penalty).
The district court rejected this argument, which it treated as claim 16, noting
that the trial court found this alleged promise “could not be enforced at sentencing
because it violated the plea agreement.” R. vol. 2, 194. In light of this finding, the
district court reasoned, Park “fail[ed] to show how the government’s failure to seek
enforcement of the agreement affected his conviction or sentence or infected the
proceedings with unfairness that amounted to a denial of due process.” Id.; see also
Cole v. Trammell, 755 F.3d 1142, 1174 (10th Cir. 2014).
In other words, the district court concluded that even assuming the prosecutor
made and then reneged on such a promise, Park’s failure to establish the prosecutor’s
actions prejudiced him was fatal to his prosecutorial misconduct claim. And Park
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makes no attempt to explain how or why “reasonable jurists would find the district
court’s assessment . . . debatable or wrong.” Slack, 529 U.S. at 484. Accordingly, we
won’t grant a COA on this basis.
Finally, in a related argument, Park asserts that defense counsel was
ineffective in failing to “get a written agreement” from the government regarding its
alleged promise to “take the 924(c) away at sentencing.” Aplt. Br. 6, 9. The district
court rejected this argument, which it treated as claim 2, on the same basis upon
which it rejected claim 16. That is, the district court cited the trial court’s finding
“that enforcing the alleged [promise] would not be consistent with the plea
agreement,” R. vol. 2, 186, and concluded that even assuming defense counsel’s
performance was deficient, Park therefore couldn’t demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
Because Park fails to engage with the district court’s reasoning, he once more fails to
establish that “reasonable jurists would find the district court’s assessment . . .
debatable or wrong.” Slack, 529 U.S. at 484. Park is therefore not entitled to a COA
on this basis either.
For the reasons discussed above, Park isn’t entitled to a COA to appeal the
district court’s resolution of claim 2 or claims 15–21. That leaves claim 1 and claims
3–14. But Park doesn’t address these remaining claims or the district court’s reasons
for rejecting them. Accordingly, Park necessarily fails to show that “reasonable
6
jurists would find the district court’s assessment” of these claims “debatable or
wrong.” Slack, 529 U.S. at 484. Thus, we deny Park’s COA request and dismiss the
matter.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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