                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   January 10, 2008
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                      No. 07-3243
          v.                                           District of Kansas
 ARTHUR WILLIAMS, JR.,                         (D.C. Nos. 06-CV-4141-SAC and
                                                      03-CR-40112-SAC)
                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


      Petitioner Arthur Williams, Jr., a federal prisoner proceeding pro se, seeks

a certificate of appealability (COA) that would allow him to appeal from the

district court’s order denying his motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B). We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because we determine that this

collateral attack on Mr. Williams’ conviction and sentence is barred under the

waiver of appeal he executed as part of his plea agreement in this case, we

conclude that Mr. Williams has failed to make “a substantial showing of the




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
denial of a constitutional right,” and therefore deny his request for a COA and

dismiss the appeal. 28 U.S.C. § 2253(c)(2).



                                 BACKGROUND

      On January 22, 2004, Mr. Williams entered a plea of guilty to one count of

distribution of a mixture containing a detectable quantity of cocaine base in

violation of 21 U.S.C. § 841(a)(1). He was sentenced to 70 months

imprisonment. In pleading guilty, Mr. Williams signed a plea agreement drafted

by the United States Attorney. The agreement included a waiver of Mr. Williams’

right to appeal or collaterally attack his conviction and sentence:

      Waiver of Appeal and Collateral Attack. Defendant knowingly and
      voluntarily waives any right to any appeal or collateral attack on any
      matter in connection with this prosecution and sentence, except the
      defendant reserves the right to appeal the district court’s calculation
      of his offense level under the Sentencing Guidelines. The defendant
      also waives any right to any challenge to his sentence or [the]
      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 to the extent that such a § 2255 claim is deemed
      unwaivable under the holding of United States v. Cockerham, 237
      F.3d 1179, 1187 (10th Cir. 2001). However, if the United States
      exercises its right to appeal the sentence imposed as authorized by
      Title 18, U.S.C. § 3742(b), the defendant is released from this waiver
      and may appeal his sentence as authorized by Title 18, U.S.C. §
      3742(a).

R., doc. 59, at 3–4. As permitted under this waiver, Mr. Williams lodged an

appeal challenging the calculation of his offense level. We affirmed. United

States v. Williams, 431 F.3d 1234 (10th Cir. 2005), cert. denied, 547 U.S. 1091

                                         -2-
(2006). Mr. Williams then filed a motion in the district court seeking to modify

his sentence pursuant to 18 U.S.C. § 3582(c)(2). He disputed the drug quantity

attributed to him as relevant conduct for sentencing purposes, and argued that

subsequent amendments (518 and 591) to the Sentencing Guidelines had lowered

the range applicable to his offense. Because his sentencing had actually taken

place after those amendments, the district court held itself without jurisdiction to

modify the sentence. Dist. Dkt. Doc. 57; see U.S.S.G., app’x C, amend. 518

(effective Nov. 1, 1995), 591 (effective Nov. 1, 2000).

      Next, Mr. Williams filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, arguing that his counsel had been

ineffective in failing to object to a two-point firearm enhancement and in

conceding the facts relevant to the district court’s drug quantity finding. In

response, the government moved to enforce the plea agreement’s waiver provision

and dismiss the motion. The district court held that the motion was a collateral

attack within the scope of a waiver knowingly and voluntarily made, and denied

it. The district court also refused to grant a certificate of appealability (COA). 1

      1
        The petition was received on July 16, 2007, 63 days after the denial of Mr.
Williams’ § 2255 motion, which would ordinarily make it untimely. See United
States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). However, the district court
held the petition, qua notice of appeal, timely under the “prison mailbox rule,”
Fed. R. App. P. 4(c)(1), which under certain circumstances allows documents
submitted by incarcerated litigants to be considered filed when mailed. Because
“[t]he filing of a timely notice of appeal is an absolute prerequisite to our
jurisdiction,” Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir.1996), we
                                                                         (continued...)

                                           -3-
Mr. Williams now seeks a COA from this Court. The district court granted him

leave to proceed in forma pauperis.

      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). 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).

      Mr. Williams advances no argument that satisfies this standard. His claim

that his waiver of collateral attack rights was not knowing and voluntary, was not

raised in district court, and cannot be brought for the first time on appeal.

Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004). His claims that trial

counsel was ineffective in failing to object to a firearm enhancement and in

conceding to the drug-quantity facts were properly rejected by the district court.

When a defendant has waived the right to appeal or collaterally attack a

      1
        (...continued)
have reviewed the petition, and note that it was properly certified under penalty
of perjury to have been deposited in the prison mail system on July 13, 2007. For
timeliness purposes, the petition is therefore treated as filed on that date, making
it timely.

                                          -4-
conviction or sentence, he may raise the issue of ineffective assistance of counsel

in connection with the negotiation or entry of the plea or of the waiver, but not

ineffectiveness with respect to other matters, including calculation of the sentence

unless explicitly reserved. United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.

2004) (en banc). Mr. Williams’ arguments fall outside that narrow ambit.

      To the extent that Mr. Williams’ assertion that “Appellants [sic] counsel

‘lied and misled’ him into believing he did not waive his right to appeal his

sentence or bring a collateral attack,” COA Petn. ¶ 6, at 3, can be liberally

construed as a challenge to the effectiveness of trial counsel in connection with

the negotiation of the waiver, we have thoroughly examined the record below and

conclude that no such claim was presented to the district court. Absent

“extraordinary circumstances to the contrary,” we will not consider such an issue

“for the first time on appeal.” Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801,

814 n.22 (10th Cir. 1995). This is true even when the litigant is a prisoner

seeking a COA pro se. E.g., Laurson v. Leyba, ___ F.3d ___, No. 07-1177, 2007

WL 2874444, at *2 (10th Cir. Oct. 3, 2007).



                                  CONCLUSION

      We agree with the district court that the appellate waiver must be enforced,

and therefore do not find that Mr. Williams “has made a substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). Accordingly, we

                                          -5-
DENY Mr. Williams’ request for a COA and DISMISS this appeal.

                                             Entered for the Court,

                                             Michael W. McConnell
                                             Circuit Judge




                                    -6-
