                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                  October 30, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 JU STIN JA CK SO N ,

          Petitioner-A ppellant,                         No. 07-5099
 v.                                               (D.C. No. 05-CR-58-CV E)
                                               (D.C. No. 06-CV-647-CVE-FHM )
 U N ITED STA TES O F A M ER ICA,                        (N.D. Okla.)

          Respondent-Appellee.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


      Petitioner-A ppellant Justin Jackson, proceeding pro se, seeks a certificate

of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(1) to challenge the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

Review ing M r. Jackson’s filings liberally, 1 we hold that no reasonable jurist could

      *
          This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
           Because M r. Jackson is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
                                                                      (continued...)
conclude that the district court’s denial was incorrect. See Slack v. M cDaniel,

529 U.S. 473, 484 (2000). Accordingly, we DENY M r. Jackson’s application for

a COA and DISM ISS his appeal.

                                I. BACKGROUND

      M r. Jackson pleaded guilty, pursuant to a plea agreement, to possession of

methamphetamine with intent to distribute and possession of a firearm in

furtherance of a drug trafficking crime. The charges against M r. Jackson arise

from a February 2005 surveillance operation concerning drug trafficking in Tulsa,

Oklahoma. During this surveillance operation, officers from the Tulsa Police

Department (“TPD”) and agents from the Bureau of Alcohol, Tobacco, Firearms

and Explosives watched the home of Steven Stewart and the Comfort Suites,

where M r. Jackson had rented a room.

      After observing short-term traffic throughout the day at the Stewart

residence, which consisted of multiple vehicles parking outside while the

occupants briefly went inside the residence, the investigators prepared to execute

a search warrant. This plan was put on hold, however, when they observed a car

– a Toyota Camry – occupied by two males leaving the Stewart residence. Earlier

in the day, investigators had observed the target of their investigation, Trinidad




      1
       (...continued)
U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

                                         -2-
Rodela, in the same vehicle. Believing M r. Rodela was in the Camry with a large

quantity of crystal methamphetamine, the investigators started surveillance of it.

      A TPD patrol unit stopped the vehicle at the request of the surveillance

team. During this stop, the occupants of the Camry were removed and secured for

the investigators’ safety. The investigators then asked the occupants for

identification. W hen M r. Jackson, who was one of the occupants of the vehicle,

was asked what his name w as, he replied, “The stuff is right here in my pocket.”

R., Vol. I, Doc. 94, Ex. 3 at 3. W hen an agent asked what “stuff” he was

referring to, M r. Jackson responded, “The stuff you’re looking for.” Id.

      The agent observed a baggie protruding from M r. Jackson’s pocket. Upon

closer examination, the agent noted that the baggie contained a w hite powdery

substance. Believing the substance to be methamphetamine, the agent removed

the baggie from M r. Jackson’s pocket and patted him down for the agent’s safety.

In addition to the suspected methamphetamine, the agent found a firearm on M r.

Jackson’s person.

      M r. Jackson was indicted for allegedly possessing methamphetamine with

intent to distribute and allegedly possessing a firearm in connection with the drug

trafficking offense. He entered into a plea agreement. As part of his plea

agreem ent, M r. Jackson w aived his appellate and post-conviction rights. He

specifically waived his right to appeal his conviction and sentence pursuant to 28

U.S.C. § 1291, with the exception of any contested sentencing issues regarding

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drug quantities or his role in the offense. M r. Jackson also waived his right to

collaterally attack his conviction and sentence, except for claims based on

ineffective assistance of counsel that challenge the validity of the guilty plea or

his waiver of his appellate and post-conviction rights.

      After granting a five-level downward departure, the court sentenced M r.

Jackson at the bottom of the advisory sentencing range of the United States

Sentencing Guidelines. He was sentenced to thirty-seven months for the

methamphetamine possession count and sixty months for the possession of a

firearm count, the terms to run consecutively, for a total sentence of ninety-seven

months of imprisonment. He also was sentenced to five years of supervised

release.

      M r. Jackson filed a motion with the district court to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. M r. Jackson made four claims in his

motion: (1) he received ineffective assistance of counsel because his attorney

offered him unreasonable advice concerning the viability of a m otion to suppress

evidence obtained in the allegedly unlawful investigatory stop and did not in fact

file such a motion to suppress; (2) he received ineffective assistance of counsel

because his attorney provided him with a different version of the plea agreement

for review than the agreement that he signed; (3) his Fourth Amendment rights

were violated because the police did not have probable cause for his traffic stop;

and (4) his Sixth Amendment rights were violated pursuant to Blakely v.

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Washington, 542 U.S. 296 (2004), because the “relevant conduct” was not

submitted to a jury.

      The district court denied M r. Jackson’s m otion. He then filed this appeal,

raising only his first ineffective assistance of counsel claim and his Fourth

Amendment claim.

                                 II. D ISC USSIO N

      Regarding M r. Jackson’s ineffective assistance of counsel claim, the

district court correctly applied Strickland v. Washington, 466 U.S. 668 (1984),

and concluded that M r. Jackson did not establish ineffective assistance of

counsel. 2 The record supports the conclusion that the investigators had



      2
              Although “find[ing] the [waiver] analysis somew hat more
complicated” as to this ineffective assistance of counsel claim than M r. Jackson’s
other claims, the district court determined that it did not fall within the scope of
his waiver of collateral-attack rights. R., Vol. I, Doc. 108, at 8, 10. M r. Jackson
argued that his attorney had advised him that he was “unable to file [a] motion to
suppress evidence seized in [the] arrest,” and, but for receiving this advice that
was “neither true nor reasonable,” M r. Jackson would not have pleaded guilty
without the suppression of some evidence. Id., Doc. 107, at 2. In seeking COA ,
M r. Jackson makes a similar argument: “By following [i]neffective assistance
from my counsel I entered into a plea agreement with the government pleading
guilty to evidence that w as seized as the result of an illegal arrest.” COA
Application at 2. Given that M r. Jackson’s ineffective assistance of counsel claim
directly ties his attorney’s conduct in failing to file a motion to suppress to the
advice the attorney provided him in connection with his decision to plead guilty,
we are comfortable operating on the view that M r. Jackson’s ineffective
assistance of counsel claim is not barred by his collateral-attack waiver. See
United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (holding that
plea agreement waivers of collateral-attack rights do not bar § 2255 motions
alleging ineffective assistance related to counsel’s representation in the
negotiation or entry of the w aiver or the plea).

                                         -5-
reasonable suspicion that criminal activity was afoot when they stopped the

vehicle M r. Jackson was in, and that there was probable cause to arrest M r.

Jackson following the stop, based on his unsolicited incriminating statements, and

the drugs and firearm found on his person. Thus, the failure of M r. Jackson’s

counsel to file a motion to suppress and his related pre-plea advice do not fall

below an objective standard of reasonableness and do not constitute deficient

performance. See H ill v. Lockhart, 474 U.S. 52, 56-58 (1985). Accord United

States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (“Counsel is not required by

the Sixth A mendment to file meritless motions.”).

      Regarding M r. Jackson’s Fourth Amendment claim, the district court

correctly applied United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004), in

concluding that this claim falls within the scope of the collateral-attack waiver

and that M r. Jackson is bound by that waiver. As the district court noted, the

record amply supports a finding that M r. Jackson’s guilty plea, which included his

agreement to waive his collateral-attack rights, was knowingly and voluntarily

entered.

      M r. Jackson also filed a motion for leave to proceed in forma pauperis on

this appeal. Because he was granted permission to proceed in forma pauperis by

the district court, his status continues on appeal. Accordingly, M r. Jackson’s in

forma pauperis request is denied as moot.




                                         -6-
     For the reasons stated above, M r. Jackson’s request for a COA is DENIED

and his appeal is DISM ISSED.

                                   Entered for the Court

                                   Jerome A. Holmes
                                   Circuit Judge




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