                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 18, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 14-2202
v.
                                                     (D. New Mexico)
                                            (D.C. Nos. 1:13-CV-00966-RB-LAM
MARIO DEVONNE WASHINGTON,
                                                 and 2:10-CR-03160-RB-2)
SR.,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.


      Mario Washington, a federal prisoner, seeks to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

The matter is before this court on Washington’s request for a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). Because Washington has not “made a substantial showing
of the denial of a constitutional right,” this court denies his request for a COA

and dismisses this appeal. 1 Id. § 2253(c)(2).

      Washington was charged in a multi-count indictment with crimes relating

to the distribution of illegal drugs. After Washington’s motion to suppress

evidence was denied in part, he entered into a written plea agreement with the

Government, agreeing to plead guilty to the charge of conspiracy to possess with

the intent to distribute marijuana. The plea agreement also contained a waiver of

Washington’s right to directly appeal or collaterally attack his conviction and

sentence except on the issue of ineffective assistance of counsel in negotiating or

entering into the plea or waiver. 2

      Notwithstanding the waiver, Washington filed the instant § 2255 motion

raising a challenge to his sentence, a due process claim based on “outrageous

government conduct,” and multiple claims of ineffective assistance of counsel.

The district court concluded Washington’s claims fell within the scope of the

waiver, and Washington knowingly and voluntarily entered into the plea

agreement and waiver. See United States v. Hahn, 359 F.3d 1315, 1325-27 (10th

Cir. 2004). The district court acknowledged Washington’s § 2255 motion could


      1
          Washington’s motion to proceed in forma pauperis on appeal is granted.
      2
       Washington was also permitted to appeal the denial of his motion to
suppress as to a cellular telephone. On direct appeal, this court affirmed the
denial of that motion. United States v. Washington, 536 F. App’x 810, 812 (10th
Cir. 2013).
                                         -2-
be read to contain a challenge to the validity of the plea agreement based on the

ineffective assistance of counsel in connection with its negotiation. See Hahn,

359 F.3d at 1327 (holding enforcing a waiver will result in a miscarriage of

justice if “ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid”); United States v. Cockerham, 237 F.3d

1179, 1183 (10th Cir. 2001). The court rejected this claim on the merits.

Accordingly, the district court enforced the waiver and denied Washington’s

§ 2255 motion. The court also denied Washington’s request to amend his § 2255

motion to add a claim relating to the search of his cellular telephone and

Washington’s two motions to dismiss his underlying criminal case, concluding the

claims asserted in all three motions fell within the scope of the waiver.

      This court cannot reach the merits of Washington’s appeal unless we first

grant him a COA. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be

entitled to a COA, Washington must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing,

he 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.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether

Washington has satisfied his burden, this court undertakes “a preliminary, though

not definitive, consideration of the [legal] framework” applicable to each of his

                                         -3-
claims. Id. at 338. Although Washington need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Washington’s application for a COA and

appellate filings, the magistrate judge’s recommendation, the district court’s

order, and the entire record on appeal pursuant to the framework set out by the

Supreme Court in Miller-El, this court concludes Washington is not entitled to a

COA. The district court’s resolution of Washington’s § 2255 motion is not

reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. Accordingly, this court denies

Washington’s request for a COA and dismisses this appeal.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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