FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 23, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-8097
(D.C. Nos. 2:16-CV-00074-NDF and
SHELLY LYNN McELROY, 2:15-CR-00021-NDF-3)
(D. Wyo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Shelly McElroy, a federal prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to challenge the dismissal of her 28 U.S.C. § 2255 motion.
We deny a COA and dismiss the appeal.
I
McElroy pled guilty to conspiracy to possess with intent to distribute
methamphetamine and was sentenced to 110 months’ imprisonment. Pursuant to her
plea agreement, McElroy waived her right to appeal. At a change of plea hearing,
McElroy affirmed to the district court that she had reviewed the agreement with her
attorney and she understood all of its terms. The court emphasized to McElroy that
*
This order is not binding precedent, except under the doctrines of law of the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.
the plea agreement waived her right to appeal and that the Tenth Circuit routinely
enforces such waivers. When asked if she understood this waiver, McElroy
responded, “Yes, ma’am.”
Final judgment was entered on September 25, 2015. McElroy subsequently
filed a § 2255 motion alleging ineffective assistance of counsel because her attorney
told her she could not appeal, presented no defense, and failed to share discovery
materials. She also asserted insufficiency of the evidence and requested a sentence
reduction under Johnson v. United States, 135 S. Ct. 2551 (2015). The district court
dismissed each claim as lacking merit or insufficiently pled and denied a COA.
McElroy now seeks a COA from this court.
II
A prisoner may not appeal the denial of relief under § 2255 without a COA.
§ 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard,
McElroy 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) (quotations omitted).
McElroy first argues that she is entitled to a sentence reduction under Johnson,
which invalidated the “residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), on due process grounds. This claim lacks merit. Not
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only was McElroy sentenced after Johnson, but she was also not sentenced under
ACCA or any of the sentencing laws that resemble ACCA.
Next, McElroy appears to argue that her sentence should be reduced based on
an undefined sentencing disparity. Because she did not raise this argument before the
district court, it is waived. See United States v. Lee Vang Lor, 706 F.3d 1252, 1256
(10th Cir. 2013). Moreover, McElroy was given a below-Guidelines sentence.
Finally, McElroy challenges the district court’s dismissal of her ineffective
assistance of counsel claims. A petitioner alleging ineffective assistance of counsel
must establish “that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). Counsel’s statement to McElroy that she could not appeal does not
constitute ineffective assistance. McElroy’s waiver of her right to appeal was
knowing and voluntary. The waiver was explicit in her written plea agreement and
she stated that she understood the waiver at her change of plea hearing. See United
States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam) (a valid
waiver of appellate rights must be made knowingly and voluntarily). With regard to
McElroy’s claims that counsel failed to present a defense or share discovery
materials with her, the district court determined that McElroy failed to provide any
factual support for these allegations. No reasonable jurist would dispute this
conclusion. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
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III
We DENY a COA and DISMISS the appeal. McElroy’s motion to proceed in
forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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