                                                                          FILE D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                   December 16, 2008
                      U N IT E D STA T E S C O U R T O F A PPE A L S
                                                                   Elisabeth A. Shumaker
                                   T E N T H C IR C U IT               Clerk of Court



 UNITED STATES OF AM ERICA,

          Plaintiff-Appellee ,
 v.
                                                            No. 08-4072
 BRIAN GERHARTZ,                                     (D.C. No. 2:07-CV-935-TC)
                                                              (D. Utah)
          Defendant-Appellant .




            O R D E R D EN Y IN G C E R T IFIC A T E O F A PPE A L A B IL IT Y *


Before O ’B R IE N , M cK A Y , and G O R SU C H , Circuit Judges.


      Brian Gerhartz seeks a Certificate of Appealability (“COA”) permitting him

to appeal the district court’s denial of his motion to vacate, set aside, or correct

his sentence filed pursuant to 28 U.S.C. § 2255. W e are constrained by the terms

of 28 U.S.C. § 2253(c)(2) and our precedent to deny M r. Gerhartz’s application.

                                           ***

      Under the terms of a plea agreement with the government, M r. Gerhartz

pled guilty to conspiring or attempting to manufacture more than fifty grams of




      *
        This order is not binding precedent except under the doctrines of law of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.
methamphetamine. See 21 U.S.C. §§ 841(a), 841(b)(1)(A)(viii), 846. At

sentencing, the district court concluded that M r. Gerhartz was subject to a

mandatory minimum sentence of 120 months’ imprisonment followed by 60

months’ supervised release. D.Ct. Op. at 1. As part of his plea, M r. Gerhartz

expressly waived his right to appeal this sentence or to attack it collaterally.

D.Ct. Op. at 1; United States v. Gerhartz, 2007 W L 1417292, at *1 (10th Cir.

2007). W hen M r. Gerhartz nevertheless filed a notice of appeal, a panel of this

court dismissed it as barred by the plea agreement. Applying our three-part test

announced in United States v. Hahn, 359 F.3d 1315, 1325-27 (10th Cir. 2004)

(en banc) (per curiam), the panel enforced the waiver because (1) the challenge

fell within the scope of the waiver of appellate rights; (2) the waiver appeared

knowing and voluntary; and (3) no miscarriage of justice resulted from the

waiver’s enforcement. Gerhartz, 2007 W L 1417292, at *1.

      Several months later, M r. Gerhartz moved the district court to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255. M r. Gerhartz’s

motion challenged the district court’s sentencing decision, and in particular

challenged the sentencing court’s calculation of his criminal history under the

Sentencing Guidelines, submitting that he should have been afforded the

protection of 18 U.S.C. § 3553(f)’s “safety valve” for less culpable offenders. R.

at 5-6, 12-21.



                                         -2-
      The district court concluded that, like his earlier attempt to directly appeal

his sentence, M r. Gerhartz’s § 2255 motion was barred by his plea agreement.

D.Ct. Op. at 2-3. In reaching this conclusion, the district court specifically noted

that M r. Gerhartz might have argued that his plea agreement was involuntary by

virtue of inadequate advice from his trial counsel. Id. (citing United States v.

Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); United States v. Cockerham,

237 F.3d 1179, 1187 (10th Cir. 2001)). But the court proceeded to observe that

M r. Gerhartz raised no such argument in his motion, which instead focused

exclusively on the sentencing court’s purported error in calculating his sentence.

In these circumstances, the district court held, M r. Gerhartz’s plea agreement

controlled and barred his claim. D.Ct. Op. at 3.

      M r. Gerhartz now seeks to appeal the district court’s decision. M r.

Gerhartz appears before us pro se, so we afford his submissions a solicitous

construction. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

Because he lacks a COA enabling him to appeal the district court’s decision, see

28 U.S.C. § 2253(c), we will construe his notice of appeal as an application for

the needed certificate, see 10th Cir. R. 22.2(c)(1). A COA cannot issue unless the

applicant makes “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). This test is satisfied only if the applicant shows that

“reasonable jurists could debate whether (or, for that matter, agree that) the



                                         -3-
petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” M iller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotations omitted)). “W hen the district court denies a

[§ 2255 motion] on procedural grounds without reaching the prisoner’s underlying

constitutional claim,” this test requires us to decide whether “jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack, 529 U.S. at 484.

      It is beyond dispute that M r. Gerhartz’s direct challenges to the calculation

of his sentence— the only bases for relief he asserted before the district court— are

barred by waiver under the test we announced in Hahn. M r. Gerhartz’s plea

agreement forbids him from challenging either his sentence or “the manner in

which the sentence is determined” on collateral attack, D.Ct. Op. at 2; because all

the claims in his § 2255 motion fit this description, they are plainly within the

scope of the waiver’s terms. In addition, M r. Gerhartz’s submissions to the

district court provided no basis to question the knowing and voluntary character

of the plea agreement. Cf. Hahn, 359 F.3d at 1329. M r. Gerhartz made no

allegation that, for example, he accepted the plea agreement only because of his

lawyer’s bad advice. D.Ct. Op. at 3. Though such a claim would have survived

the waiver had it been made, Cockerham, 237 F.3d at 1187, even the most



                                         -4-
generous reading of M r. Gerhartz’s filings before the district court fails to

disclose any argument along those lines. Cf. Hahn, 359 F.3d at 1329 (defendant

must “provide support for the notion that he did not knowingly and voluntarily

enter into his plea agreement”). 1   Neither did M r. Gerhartz present any basis to

believe that enforcement of his plea agreement would result in a miscarriage of

justice, as we have defined the term, sufficient to permit the district court to

entertain his petition. See id. at 1327.

      It is true that in his submissions to this court, M r. Gerhartz has alleged that

his trial lawyer was constitutionally ineffective. In addition to challenging

counsel’s performance at the actual sentencing hearing, a claim that does not

survive his waiver, Cockerham, 237 F.3d at 1187, M r. Gerhartz also alleges that

“[c]ounsel’s failure to properly prepare for sentencing, properly prepare the

defendant, and [falsely] lead the defendant to believe that if he signed ‘now’ he

still had ‘rights’, to appeal, ‘any issues during sentencing’ . . . violated . . . the

‘Constitution of the United States.’” Appellant’s Br. at 6. Given our obligation to

read the papers of pro se litigants with solicitude, we think that sufficient to raise

a claim that counsel’s ineffectiveness rendered the plea agreement itself




      1
       W e note that the previous panel’s determination that the plea appeared
knowing and voluntary from the face of the trial record is not necessarily
conclusive of this question on collateral review because extrinsic evidence could
show that counsel’s ineffectiveness rendered the plea involuntary.

                                           -5-
involuntary— a claim that would survive M r. Gerhartz’s waiver, and that would

provide a basis for withholding enforcement of the waiver under Hahn.

      The difficulty is that, when considering whether to issue a COA, we are

instructed to review only whether the district court’s decision was arguably

incorrect. Slack, 529 U.S. at 484. And we fail to see how the district court could

have been wrong not to consider arguments or evidence not presented to it. W e

and our sister circuits have repeatedly declined to address claims in these

circumstances. See, e.g., Coppage v. M cKune, 534 F.3d 1279, 1282 (10th Cir.

2008) (declining to address arguments not first presented to the district court);

Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (same); Jones v. Gibson,

206 F.3d 946, 958 (10th Cir. 2000) (“Petitioner did not make this argument in his

revised habeas petition. Thus, this court need not consider it.”); Blanton v.

Quarterman, 543 F.3d 230, 243 (5th Cir. 2008) (court of appeals “cannot”

consider habeas arguments not presented to the district court); Barbe v. M cBride,

521 F.3d 443, 454 n.17 (4th Cir. 2008) (declining to consider habeas claims for

the first time on appeal); Carrascosa v. M cGuire, 520 F.3d 249, 263-64 (3d Cir.

2008) (issues not presented to district court were “not properly before” court of

appeals).

                                        ***




                                         -6-
      Because the district court’s analysis of the motion M r. Gerhartz presented

was correct, the application for a COA is denied. The appeal is dismissed.




                                      ENTERED FOR THE COURT


                                      Neil M . Gorsuch
                                      Circuit Judge




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