                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 15, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-7057
       v.                                              (E.D. Oklahoma)
 APRIL DAWN CARVER,                         (D.C. Nos. 6:08-CV-00322-RAW and
                                                  6:07-CR-00031-RAW-1)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HENRY, Chief Circuit Judge, HARTZ, and O’BRIEN, Circuit Judges.



      April Dawn Carver, appearing pro se, requests a certificate of appealability

(COA) to appeal the district court’s denial of her motion for a writ of habeas

corpus under 28 U.S.C. § 2255. See id. § 2253(c)(1)(B) (requiring COA to appeal

dismissal of § 2255 motion). Because no reasonable jurist could conclude that

Ms. Carver’s § 2255 motion should have been resolved in a different manner, see

Slack v. McDaniel, 529 U.S. 473, 485 (2000), we deny her request for a COA and

dismiss this appeal.

I.    BACKGROUND

      Ms. Carver entered into a plea agreement with the government and pleaded

guilty on July 18, 2007, in the United States District Court for the Eastern District
of Oklahoma to two counts of making a firearm (26 U.S.C. § 5861(f)) and two

counts of possession of an unregistered firearm (id. § 5861(d)). Because she used

the firearm in connection with a conspiracy to commit murder, the court’s

guidelines calculation began with the base offense level for conspiracy to commit

murder. See USSG §§ 2K2.1(c)(1)(a); 2X1.1(a). Under USSG § 2A1.5(a), that

base offense level is 33. Taking into account a 3-level reduction for acceptance

of responsibility, see USSG § 3E1.1, her total offense level was determined to be

30. With a criminal history category of I, the guidelines sentencing range was 97

to 121 months’ imprisonment. See id. ch. 5, pt. A. The district court sentenced

her to 120 months’ imprisonment.

      On August 25, 2008, Ms. Carver filed a § 2255 motion contending that her

counsel provided ineffective assistance because (1) he failed to challenge the

district court’s use of USSG § 2A1.5 on the ground that the plea agreement did

not mention any conspiracy to commit murder; and (2) he failed to challenge the

district court’s denial of the government’s motion under USSG § 5K1.1 to reduce

her offense level for substantial assistance. She argued that “[a]s a result of the

aforenoted errors,” her plea was not knowingly, voluntarily, and intelligently

entered. R. at 14. She also contended that her counsel had given her an

inaccurate estimate of her sentence, causing her to accept the plea agreement.

The court denied the motion.




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II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant [for a

COA] has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional

claims on the merits,” the prisoner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. If the motion was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but she must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the [motion]

or that the [movant] should be allowed to proceed further.” Id.

      In this court Ms. Carver argues that her counsel provided ineffective

assistance because he did not contest the district court’s guidelines calculation

and failed to inform her that her offense level (and sentence) could be enhanced

on the basis of relevant conduct not contained in the plea agreement. She also

contends that the district court was biased against her. To pursue these

challenges, however, she must overcome a waiver in her plea agreement.

Paragraph 21 of the agreement states:

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             Defendant expressly waives the right to appeal defendant’s
      sentence on any ground, except to challenge an upward departure
      from the applicable guideline range as determined by the Court.
      Defendant specifically waives any appeal rights conferred by Title
      18, United States Code, Section 3742, any post-conviction
      proceedings, and any habeas corpus proceedings. Defendant is aware
      that Title 18, United States Code, Section 3742 affords defendant the
      right to appeal the sentence imposed. Defendant is also aware that
      the sentence herein has not yet been determined by the Court.
      Defendant is aware that any estimate of the probable sentencing
      range that defendant may receive from his attorney, plaintiff, the
      probation office, or any agents of such parties, is not a promise, and
      is not binding on plaintiff, the probation office, or the Court.
      Realizing the uncertainty in estimating what sentence defendant will
      ultimately receive, defendant knowingly waives the right to appeal
      the sentence (except as to an upward departure) and agrees not to
      contest such sentence in any post conviction proceeding, including
      but not limited to writs of habeas corpus or coram nobis concerning
      any and all motions, defenses, probable cause determinations, and
      objections which defendant has asserted or could assert to this
      prosecution and to the court’s entry of judgment against defendant
      and imposition of sentence, in exchange for the concessions made by
      the United States in this agreement and the execution of the
      agreement itself.

R. at 41–42.

      “[A] waiver of § 2255 rights in a plea agreement is generally enforceable

. . . .” United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001). We

determine whether such waivers are enforceable by examining “(1) whether the

[§ 2255 motion] falls within the scope of the waiver of [postconviction] rights;

(2) whether the defendant knowingly and voluntarily waived his [postconviction]

rights; and (3) whether enforcing the waiver would result in a miscarriage of




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justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)

(reviewing a waiver of appellate rights).

      It is clear that Ms. Carver’s collateral attack on her sentence falls within

the scope of the waiver in her plea agreement. The second Hahn requirement is

also satisfied because Ms. Carver has not argued that she involuntarily waived her

postconviction rights to challenge her sentence and conviction.

      As for the third Hahn requirement, we described in Hahn the circumstances

under which enforcing a waiver would result in a miscarriage of justice:

      Appellate waivers are subject to certain exceptions, including [1]
      where the district court relied on an impermissible factor such as
      race, [2] where ineffective assistance of counsel in connection with
      the negotiation of the waiver renders the waiver invalid, [3] where
      the sentence exceeds the statutory maximum, or [4] where the waiver
      is otherwise unlawful. [United States v.] Elliot, 264 F.3d [1171,]
      1173 [(10th Cir. 2001)] (citing United States v. Cockerham, 237 F.3d
      1179, 1182 (10th Cir. 2001).

359 F.3d at 1327 (brackets in original) (internal quotation marks omitted). Here,

there is only one possible ground for determining that enforcement of the waiver

would result in a miscarriage of justice—namely, that Ms. Carver’s plea itself was

invalid because of ineffective assistance of counsel. We specifically recognized

in Cockerham that a waiver of postconviction relief contained in a plea agreement

was unenforceable in a § 2255 motion “based on ineffective assistance of counsel

claims challenging the validity of the plea . . . .” 237 F.3d at 1187.




                                            -5-
      Ms. Carver makes several claims of ineffective assistance of counsel. Two,

however, do not relate to the validity of her plea; they challenge only her

counsel’s performance at sentencing (failure to contest either the application of

§ 2A1.5 or the district court’s denial of the government’s motion to depart

downward for substantial assistance). But she does raise one claim regarding

deficient performance of her counsel that could have affected her guilty plea. She

claims that her counsel gave her an inaccurate estimate of her possible sentence

under her plea agreement, causing her to accept the agreement. This claim,

however, was properly rejected by the district court.

      “In order to establish a successful claim for ineffective assistance of

counsel, [Ms. Carver] must show (1) that counsel’s performance was deficient,

and (2) that this deficient performance prejudiced [her] defense.” United States v.

Orange, 447 F.3d 792, 796 (10th Cir. 2006) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). To satisfy the prejudice requirement, she “must show that

there is a reasonable probability that but for counsel’s alleged errors, the result of

the proceeding would have been different.” Id. at 797. “Because [Ms. Carver]

must demonstrate both Strickland prongs to establish [her] claim, a failure to

prove either one is dispositive.” Id. at 796–97 (citation omitted).

      The district court concluded that Ms. Carver failed to satisfy the prejudice

requirement because she had not shown that she would not have entered the plea

had her attorney accurately estimated her sentence. Indeed, Ms. Carver has never

                                          -6-
contended that she would not have entered the plea if her counsel had informed

her that the court could take into account conduct not specifically mentioned in

the plea agreement when calculating her sentence. Moreover, the record fully

supports the conclusion that Ms. Carver herself was aware that the court could

give her the sentence she ultimately received, regardless of her counsel’s alleged

deficiencies. Paragraph 21 of the plea agreement states that “any estimate of the

probable sentencing range that defendant may receive from his attorney . . . is not

a promise, and is not binding on plaintiff, the probation office, or the Court.” R.

at 41. And Paragraph 14 states that “the Court is free to impose upon the

defendant any sentence up to and including the maximum sentence of

imprisonment . . . on each of the Counts.” Id. at 37. She was later advised during

her plea colloquy that her offenses could be punished by up to 40 years’

imprisonment and she then acknowledged that her sentence was “solely a matter

within the control of [her] sentencing judge, subject to the advice of the Federal

Sentencing Guidelines.” Id. at 78. No reasonable jurist could debate whether she

is entitled to relief on this claim. Therefore the waiver in her plea agreement is

enforceable and she is barred from bringing claims under § 2255.

      Although Ms. Carver’s bias claim is barred, we nevertheless address it

because it could taint the reputation of the judiciary. Fortunately, the claim is

baseless. Ms. Carver contends that in an earlier, unrelated case, the same district

judge also rejected the government’s motion to reduce the defendant’s sentence

                                         -7-
for substantial assistance under USSG § 5K1.1 but was bound by statutory

maximums from sentencing the defendant to more than 60 months. She appears

to argue that the district court sentenced her harshly to make up for that earlier

sentence. She also points to an affidavit filed by her mother which states that an

attorney “expressed his personal knowledge” that Ms. Carver’s sentence “‘had

something to do with’” that earlier case. Id. at 135. The affidavit further states

that during sentencing, the district court’s “demeanor, attitude, expressions and

words, did then and do now, lead me to believe” that the district court was biased

against Ms. Carter. Id. at 134.

      “To demonstrate a violation of due process because of judicial bias, a

claimant must show either actual bias or an appearance of bias. A judge must

recuse himself if sufficient factual grounds exist to cause a reasonable, objective

person, knowing all the relevant facts, to question the judge’s impartiality.”

United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (citation and internal

quotation marks omitted). But adverse rulings cannot in themselves support a

charge of judicial bias, see id., and “conclusions, rumors, beliefs, and opinions

are not sufficient to form a basis for disqualification,” Hinman v. Rogers, 831

F.2d 937, 939 (10th Cir. 1987). In addition, “[a]lthough a judge’s remarks during

the course of a trial may be ‘critical,’ ‘disapproving,’ or ‘hostile’ to a party,

usually they will not support a partiality charge.” Nickl, 427 F.3d at 1298

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

                                          -8-
       To support her bias allegation, Ms. Carver relies solely on an adverse

ruling and opinions that reference no specific facts. She has presented no

evidence that would “cause a reasonable, objective person, knowing all the

relevant facts, to question the judge’s impartiality.” Id. (internal quotation marks

omitted). Accordingly, her claim is totally without merit.

III.   CONCLUSION

       No reasonable jurist could debate whether Ms. Carver is entitled to relief.

We therefore DENY the application for a COA and DISMISS the appeal. We

GRANT Ms. Carver’s motion to proceed in forma pauperis on appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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