                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  October 3, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                        No. 11-6183
 v.
                                             (D.C. Nos. 5:09-CR-00221-F-1 and
                                                     5:11-CV-00043-F)
 MICHAEL COLEMAN MEEKS,
                                                        (W.D. Okla.)
               Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



      Michael Meeks pleaded guilty to being a felon in possession of firearms

and ammunition. His plea agreement stated that the maximum penalty that could

be imposed for his possession count was ten years imprisonment and two years of

supervised release. But the plea agreement also went on to say that, if he

qualified for an enhancement under the Armed Career Criminal Act (“ACCA”),

he could face up to life in prison. Plea Agreement at 2-3. Eventually, the district




      *
        This order is not binding precedent except under the doctrines of law of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.
court found that his criminal history did qualify him for the ACCA enhancement,

and sentenced him to a term of fifteen years in prison.

      In response, Mr. Meeks filed a motion seeking relief from his conviction

under 28 U.S.C. § 2255. He argued that his counsel was ineffective in

investigating the basis for the ACCA enhancement and that he is not eligible for

the enhancement. The district court ultimately denied the petition, finding that

Mr. Meeks had waived any collateral review of his sentence in his plea agreement

and that, in any case, his counsel was not ineffective. The district court also

declined to issue a certificate of appealability (“COA”). Mr. Meeks now seeks

from us a COA to appeal this decision.

      We may grant a COA only if Mr. Meeks makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard,

Mr. Meeks 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) (internal

quotation omitted).

      Mr. Meeks fails to meet this high threshold. A plea agreement waiver of

post-conviction rights is “generally enforceable where the waiver is expressly

stated in the plea agreement and where both the plea and the waiver were

knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d 1179,

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1183 (10th Cir. 2001). Mr. Meeks’s plea agreement unambiguously waived his

right to collaterally challenge his sentence. See Plea Agreement at 6-7 (stating

that Mr. Meeks waived his right to “collaterally challenge . . . his sentence as

imposed by the Court and the manner in which the sentence is determined,

provided the sentence is within or below the advisory guideline range determined

by the Court to apply to this case”). And there is no suggestion that Mr. Meeks

made this waiver either unknowingly or involuntarily. To the contrary, Mr.

Meeks acknowledged during his thorough Rule 11 plea colloquy that he

understood he was waiving his right to appeal or challenge his sentence so long as

it was within or below the advisory guideline range. See Change of Plea Tr. at

12-13.

         Mr. Meeks’s current claims also fall within the scope of this waiver. Mr.

Meeks’s § 2255 motion asserts two claims, one alleging ineffective assistance of

counsel and the other arguing that he was not eligible for the ACCA

enhancement. The latter argument clearly falls within the scope of the plea

agreement’s waiver, as it expressly seeks to challenge his sentence collaterally.

As to the former (ineffective assistance) claim, it is of course the case that a “plea

agreement waiver of postconviction rights does not waive the right to bring a

§ 2255 petition based on ineffective assistance of counsel claims challenging the

validity of the plea or the waiver.” Cockerham, 237 F.3d at 1187. But it is also

true that “[c]ollateral attacks based on ineffective assistance of counsel claims

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that are characterized as falling outside that category are waivable.” Id. And Mr.

Meeks’s ineffective assistance of counsel claim in this case falls squarely in the

latter (waivable) category. Mr. Meeks asserts that his attorney did not adequately

investigate the crimes on which his ACCA enhancement was predicated. This

claim does not challenge the validity of his plea but only the adequacy of

counsel’s performance following the plea in defending against the enhancement.

See id. (challenges to “counsel’s performance at sentencing” are waivable).

      In light of all this, we conclude that no reasonable jurist would debate the

district court’s disposition of Mr. Meeks’s claims and so deny Mr. Meeks’s

application for a COA and dismiss this appeal.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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