                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       March 23, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                        No. 06-6291
 v.                                            (D.C. Nos. CIV-06-219-HE and
                                                     04-CR-00206-HE)
 BEN RU SSELL SM YLIE,                                  (W .D. Okla.)

       Defendant - Appellant.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Petitioner-Appellant Ben Russell Smylie, a federal inmate appearing pro se,

requests a Certificate of Appealability (“COA”) so that he may challenge his

conviction, pursuant to a guilty plea, of one count of possession of

methamphetamine with intent to distribute. On M arch 3, 2006, M r. Smylie filed a

petition for habeas corpus pursuant to 28 U.S.C. § 2254, contending that the

government failed to disclose exculpatory evidence, that his conviction violated

the Double Jeopardy Clause, that he received ineffective assistance of counsel,

and that the district court’s sentencing errors denied him Due Process of Law.

The district court correctly recharacterized the petition as a 28 U.S.C. § 2255

motion, given that M r. Smylie sought relief from his incarceration pursuant to a
federal conviction and sentence. It then denied the motion in all respects, holding

that M r. Smylie waived his right to collaterally attack his conviction and sentence

in his plea agreement 1 and granting the government’s motion to enforce the plea

agreement. See R. (CR-04-206-HE) Doc. 76-1, Ex. 1 at 5.        W e agree that M r.

Smylie has not made “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), and we deny his request for a COA and dismiss

his appeal.



                                    Background

      On November 16, 2004, a federal grand jury returned a thirteen-count

indictment charging M r. Smylie and Robby Joe Lauer with various offenses

relating to the manufacture, possession, and distribution of methamphetamine. R.

Doc. 1. After waiving his right to a jury trial, R. Doc. 29, M r. Smylie pled guilty

on February 8, 2005, to a single count of possession of a controlled substance

with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Six).

      Pursuant to his plea agreement, M r. Smylie pled guilty in exchange for the

government’s agreement to dismiss the remaining counts against him and to

recommend that his federal sentence be ordered to run concurrently with the

sentence he was to receive after pleading guilty to state drug charges. See R.

      1
        The w aiver had two exceptions–a sentence in excess of the advisory
guideline range and a retroactive change in the law–that the court determined
were not operative in M r. Smylie’s case.

                                         -2-
Doc. 31 at 3. M r. Smylie also agreed to waive his right to appeal or collaterally

challenge his conviction and sentence, provided that his sentence fell within the

Guideline range. Id. at 5. He explained his understanding of the plea agreement

in his Petition to Enter a Plea of Guilty: “I plead to count 6 and all other counts

will be dismissed; the government agrees the sentence should run concurrent[ly]

with my state sentences; no other charges can be filed; we have stipulated to

guideline provisions; and an appellate waiver.” R. Doc. 30 at 8.

      The district court sentenced M r. Smylie to 173 months’ imprisonment

followed by 36 months’ supervised release. He did not appeal.



                                     Discussion

      Before reaching the merits of M r. Smylie’s claims, we must determine

whether he is entitled to a COA. Pursuant to 28 U.S.C. § 2253(c)(2), an inmate

seeking a COA must make “a substantial showing of the denial of a constitutional

right.” He may do so by “showing 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.

M cD aniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

      The district court held that the waiver in M r. Smylie’s plea agreement

prevented him from collaterally challenging his conviction and sentence. W e

typically enforce waivers of this sort provided that (1) the disputed appeal falls

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within the scope of the waiver, (2) the defendant knowingly and voluntarily

waived his appellate rights, and (3) enforcing the waiver would not result in a

miscarriage of justice. See United States v. Porter, 405 F.3d 1136, 1142 (10th

Cir.), cert. denied, 126 S. Ct. 550 (2005); United States v. Hahn, 359 F.3d 1315,

1325 (10th Cir. 2004) (en banc); United States v. Cockerham, 237 F.3d 1179,

1183 (10th Cir. 2001). In this case, we have no difficulty concluding that M r.

Smylie’s § 2255 motion falls within the scope of his w aiver of the rights to

“collaterally challenge his guilty plea and any other aspect of his conviction” and

to “collaterally challenge . . . his sentence as imposed by the Court and the

manner in which the sentence is determined . . . .” R. Doc. 31 at 5. Likewise,

M r. Smylie’s statements in his Petition to Enter a Plea of Guilty and the district

court’s recollection of the plea colloquy are sufficient indication that his waiver

was knowing and voluntary. See R. Doc. 30; R. Doc. 81 at 4.

      W e also reject M r. Smylie’s argument that enforcing his plea agreement

would result in a miscarriage of justice. W e have held that:

      To prove that enforcement of an appellate waiver would result in a
      miscarriage of justice, a defendant must establish at least one of four
      circumstances: (1) reliance by the court upon an impermissible factor
      such as race in imposition of the sentence; (2) ineffective assistance
      of counsel in connection with the negotiation of the waiver; (3) the
      sentence exceeds the statutory maximum; or (4) the waiver is
      otherwise unlawful and seriously affects the fairness, integrity, or
      public reputation of judicial proceedings.

Porter, 405 F.3d at 1143. M r. Smylie bears the burden of establishing that one of



                                         -4-
these factors exists. United States v. Anderson, 374 F.3d 955, 959 (10th Cir.

2004). H e argues “that his plea was coerced by his attorney,” Aplt. Br. at 2-A,

and that his counsel “failed to explain to him the relevant facts concerning th[e]

plea, and he failed to explain the ramifications of a plea in the Federal Court,” id.

at 16-B. This contention is flatly contradicted by M r. Smylie’s Petition to Enter a

Plea of Guilty, which reflects a clear understanding of his plea agreement and its

consequences. See R. Doc. 30.

      He further asserts that his attorney should not have advised him to plead

guilty because the evidence against him was w eak and because his plea resulted in

multiple punishments for the same drug activity. Aplt. Br. at 16-A. He does not

contend that but for the ineffective assistance he would have gone to trial,

however. See United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993).

Regardless, this argument does not implicate “the validity of the plea or the

waiver,” so it has been waived. Cockerham, 237 F.3d at 1187.

      The district court correctly concluded that M r. Smylie’s appeal falls within

the scope of his waiver, which was entered knowingly and voluntarily, and that

enforcing the waiver would not result in a miscarriage of justice. No reasonable

jurist w ould disagree. A ccordingly, we DENY Mr. Smylie’s request for a COA ,

DENY his motion to proceed IFP, and DISM ISS his appeal.

                                        Entered for the Court
                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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