                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   December 6, 2010
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 10-3115
                                            (D.C. Nos. 5:09-CV-04136-JAR and
v.
                                                  5:06-CR-40132-JAR-1)
                                                        (D. Kansas)
DEREK WILLIAMS,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Derek Williams, 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 Williams’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 Williams 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. Id. § 2253(c)(2).

      Williams was charged in a multi-count indictment with crimes relating to

the distribution of crack cocaine. Williams entered into a written plea agreement
with the Government wherein he agreed to plead guilty to the charge of

conspiracy to possess with the intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846. The Government agreed to dismiss the

remaining charges and not file any additional charges against Williams arising out

of the facts forming the basis for the indictment. The written plea agreement also

contained a waiver of Williams’s right to directly appeal or collaterally attack his

conviction and sentence.

      Notwithstanding the waiver, Williams filed the instant § 2255 motion

raising five claims of ineffective assistance of counsel, including a claim he

received ineffective assistance of counsel in connection with the negotiation of

the plea agreement. The Government sought to enforce the waiver and filed a

motion to dismiss Williams’s § 2255 motion. The district court concluded (1)

four of Williams’s claims fell within the scope of the appeal waiver and (2)

Williams 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 court

further concluded that enforcing the waiver would not result in a miscarriage of

justice, rejecting Williams’s fifth claim—that the waiver was rendered invalid by

the ineffective assistance of counsel in connection with its negotiation. See id. at

1327; United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001).

Accordingly, the district court enforced the waiver and denied Williams’s § 2255

motion.

                                         -2-
      In his appellate brief, Williams challenges the denial of his § 2255 motion.

This court cannot reach the merits of Williams’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, Williams 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 Williams

has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338. Although Williams 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 Williams’s application for a COA and

appellate filings, 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 he is not entitled to a COA. The district court’s resolution of

Williams’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.




                                          -3-
Accordingly, this court denies Williams’s request for a COA and dismisses this

appeal.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




                                       -4-
