                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              April 13, 2006
                                 TENTH CIRCUIT                             Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,
                                                             No. 05-3445
               Plaintiff-Appellee,
          v.                                            District of Kansas
 THOMAS W. WALES,                                (D.C. Nos. 05-CV-3347-RDR &
                                                       03-CR-40151-RDR)
               Defendant-Appellant.


                            ORDER AND JUDGMENT               *




Before MURPHY , SEYMOUR , and McCONNELL , Circuit Judges.


      Thomas W. Wales, a federal prisoner proceeding         pro se , seeks a certificate

of appealability (COA) that would allow him to appeal the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2255.        See 28 U.S.C. §

2253(c)(1)(B). Because we conclude that Mr. Wales has failed to make “a


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
substantial showing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                  I. Background

      Mr. Wales was indicted for two violations of federal law: possession with

intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §

841(a)(1); and possession of an unregistered firearm, in violation of 26 U.S.C. §

5861(d). On July 2, 2004, he entered into a plea agreement. In the agreement,

Mr. Wales admitted to cultivating 138 marijuana plants with the intent to derive

money from the plants and to purchasing and possessing an unregistered shotgun.

The plea agreement also included waiver of his rights to appeal and to collateral

attack. It stated:

      Waiver of Appeal and Collateral Attack        . Defendant knowingly
      and voluntarily waives any right to appeal or collaterally attack any
      matter in connection with this prosecution, conviction and sentence.
      The defendant is aware that Title 18, U.S.C. § 3742 affords a
      defendant the right to appeal the conviction and sentence imposed.
      By entering into this agreement, the defendant knowingly waives any
      right to appeal a sentence imposed which is within the guideline
      range determined appropriate by the court. The defendant also
      waives any right to challenge a sentence or otherwise attempt to
      modify or change his sentence or manner in which it was determined
      in any collateral attack, including, but not limited to, a motion
      brought under Title 28, U.S.C. § 2255 [except as limited by    United
      States v. Cockerham , 237 F.3d 1179, 1187 (10th Cir. 2001)] and a
      motion brought under Title 18, U.S.C. § 3582(c)(2). In other words,
      the defendant waives the right to appeal the sentence imposed in this
      case except to the extent, if any, the court departs upwards from the
      applicable sentencing guideline range determined by the court.
      However, if the United States exercises its right to appeal the

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      sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the
      defendant is released from this waiver and may appeal the sentence
      received as authorized by Title 18, U.S.C. § 3742(a).

Plea Agreement 9-10. The district court accepted Mr. Wales’s guilty plea and

imposed two concurrent 60-month sentences. The mandatory statutory minimum

for possession of 100 or more marijuana plants is 60 months. 21 U.S.C. §

841(b)(1)(B)(vii).

      Despite the waiver provision in his plea agreement, Mr. Wales filed a    pro

se direct appeal which this Court dismissed as untimely, without considering the

waiver. On August 24, 2005, Mr. Wales filed a motion in the district court to

vacate, set aside, or correct his sentence. In the motion, he claimed that he was

not in possession of the shotgun; that his attorney was ineffective in failing to

inform him of the time limit for filing an appeal; that he was sick; that he did not

plant the marijuana; and that there was no evidence of intent to distribute. The

district court denied the motion to vacate, finding that Mr. Wales had waived his

right to habeas relief in his plea agreement. The court also found that in his plea

agreement Mr. Wales admitted to the facts he is now contesting and that he was

not prejudiced by any ineffectiveness of counsel. Because the district court did

not act on Mr. Wales’s request for a COA, we deem the district court’s failure to

act a denial of a COA. 10th Cir. R. 22.1(C). Mr. Wales filed an application for a

COA in this Court.


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       After he filed an application for a COA in this Court, Mr. Wales also filed

a “Motion to Vacate Sentence Under the Constitution and Statu[t]es,” in which he

claimed that the supervised release portion of his sentence was unauthorized and

unlawful. This issue is waived because Mr. Wales did not raise this issue before

the district court.   See Singleton v. Wulff , 428 U.S. 106, 120 (1976).

                                     II. Discussion

       The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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, 483-84 (2000) (internal

quotation marks omitted).

       The district court found that Mr. Wales’s claims are barred by the waiver

on collateral attacks contained in his plea agreement. This Court has held that a

defendant’s waiver of appellate rights is binding if (1) the scope of the waiver

covers the present appeal, (2) the waiver was knowing and voluntary, and (3)

enforcement of the waiver would not result in a miscarriage of justice.    United


                                            -4-
States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). The same

standard applies to waivers of collateral review, and Mr. Wales does not argue

otherwise.

       We agree with the district court that the language of the plea agreement

supports a waiver that encompasses all of Mr. Wales’s claims. The plea

agreement states that “[d]efendant knowingly and voluntarily waives any right to

appeal or collateral[] attack.” Plea Agreement 9. The plea colloquy indicates that

Mr. Wales understood the terms of the plea agreement, and Mr. Wales does not

contend that the waiver was invalid. Finally, enforcing the waiver will not result

in a miscarriage of justice: the district court did not rely on an impermissible

factor in accepting the plea agreement, Mr. Wales was sentenced to the mandatory

minimum under the statute, the waiver is not otherwise unlawful, and Mr. Wales

does not claim that counsel was ineffective in negotiating his plea agreement.     See

Hahn , 359 F.3d at 1327.

       Nor does Mr. Wales overcome his waiver of collateral review by arguing

that counsel was ineffective in failing to notify him of the time limit for filing an

appeal. This Court will not enforce a waiver of collateral review when a

defendant was deprived of the opportunity for direct appeal because defense

counsel rendered ineffective assistance by ignoring a defendant’s request to

perfect an appeal.   United States v. Garrett , 402 F.3d 1262, 1267 (10th Cir.


                                            -5-
2005); see also Campusano v. United States       , --- F.3d ---, No. 04-5134, 2006 WL

751360, at *4 (2d Cir. Mar. 23, 2006). But Mr. Wales has presented no evidence

that he asked his lawyer to file an appeal. If a defendant does not request that

counsel file an appeal, defense counsel is constitutionally obligated to consult

with a defendant about an appeal “when there is reason to think either (1) that a

rational defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.”      Roe v. Flores-

Ortega , 528 U.S. 470, 480 (2000). In making this determination, it is relevant

“whether the conviction follows a trial or a guilty plea . . . because such a plea

may indicate that the defendant seeks an end to judicial proceedings[,] whether

the defendant received the sentence bargained for as part of the plea[,] and

whether the plea expressly reserved or waived some or all appeal rights.”      Id. Mr.

Wales has presented no evidence that he informed his attorney of his interest in

appealing. The facts known to defense counsel—that Mr. Wales pleaded guilty,

received the sentence bargained for, and waived all appeal rights—reasonably

suggested to counsel that a rational defendant would not want to appeal, and more

specifically that Mr. Wales was not interested in appealing his conviction or

sentence. Counsel was therefore not constitutionally deficient in failing to perfect




                                           -6-
a direct appeal, and we enforce Mr. Wales’s waiver of his right to collateral

review.




                                 III. Conclusion

      Accordingly, we DENY Thomas W. Wales’ request for a COA and

DISMISS this appeal.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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