                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-5173
 v.
                                            (D.C. Nos. 4:08-CV-00337-JHP-FHM
                                                 and 4:06-CR-00043-JHP-1)
 MAURICO KEJUAN SMITH, a/k/a
                                                        (N.D. Okla.)
 Maurico Kijuan Smith,

          Defendant-Appellant.



                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Maurico Kejuan Smith, a federal prisoner proceeding pro se, 1 requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

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

reasonable jurists would agree both that Smith was not entitled to his choice of

appointed counsel and that his appointed counsel did not fall below an objective

standard of reasonableness, we deny a COA and dismiss the appeal.



      1
     Because Smith proceeds pro se, we liberally construe his application for a
COA. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
                                          I

      On March 7, 2006, a federal grand jury indicted Smith on five counts:

(1) possession with intent to distribute 50 grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii); (2) possession with intent

to distribute heroin, in violation of §§ 841(a)(1) and (b)(1)(C); (3) possession

with intent to distribute marijuana, in violation of §§ 841(a)(1) and (b)(1)(D); (4)

possession of a firearm in furtherance of drug trafficking crimes, in violation of

18 U.S.C. § 924(c)(1); and (5) possession of a firearm and ammunition after a

previous felony conviction, in violation of §§ 922(g)(1) and 924(a)(2). Smith was

originally charged in Oklahoma state court and was represented by privately

retained counsel, Gene Dennison, but those charges were dismissed out of

deference to the subsequent federal indictment. All the charges arose out of a

traffic stop that occurred on February 8, 2006.

      Once in federal court, Smith submitted an affidavit demonstrating that he

was financially unable to employ his own counsel, thus the district court

appointed Frank Lockhart to defend him against the federal charges. On April 7,

2006, acting through Lockhart, Smith filed a motion to suppress evidence

obtained as a result of the stop of his vehicle. Adopting the magistrate’s report

and recommendations, the district court denied the motion on May 4, 2006.

Lockhart then attempted to negotiate a conditional plea agreement with the




                                        -2-
government that would have allowed Smith to appeal the denial of his suppression

motion, but the government would not consent to such an agreement.

      On May 12, 2006, Smith pleaded guilty without a plea agreement to all five

charges. The district court sentenced Smith to 322 months’ imprisonment.

Because the government did not consent to a conditional plea, Smith’s guilty plea

waived his right to appeal the denial of his motion to suppress. See United States

v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003). Smith was therefore able to

appeal only the reasonableness of his sentence, which this court affirmed. United

States v. Smith, 219 F. App’x 765 (10th Cir. 2007) (unpublished).

      On June 5, 2008, Smith timely filed a motion to vacate his sentence under

28 U.S.C. § 2255. The district court denied the motion on October 23, 2008, and

entered judgment in favor of the United States. It subsequently denied Smith’s

request for a COA but granted his motion to proceed in forma pauperis on appeal.

                                          II

      Before us, Smith claims two errors: (1) that his Sixth Amendment right to

counsel was violated when the district court allowed Lockhart to represent him

rather than Dennison, Smith’s counsel of choice; and (2) that Lockhart was

constitutionally ineffective for failing to preserve Smith’s right to file a direct

appeal challenging the denial of his motion to suppress. Because the district

court denied Smith’s habeas petition and his request for a COA, he may not

appeal the district court’s decision absent a grant of a COA by this court.

                                         -3-
§ 2253(c)(1)(B). To obtain a COA, Smith must make a “substantial showing of

the denial of a constitutional right.” § 2253(c)(2). This requires him to show

“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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

      Smith first claims that his Sixth Amendment rights were violated when the

district court allowed Lockhart to represent him rather than Dennison, Smith’s

counsel of choice. But Lockhart was appointed counsel, and contrary to Smith’s

assertion on appeal, the Sixth Amendment does not guarantee indigent defendants

appointed counsel of their choice: “The constitutional guaranty to be represented

by counsel does not confer upon the accused the right to compel the court to

appoint such counsel as the accused may choose. On the contrary, the selection

of counsel to be appointed for an accused rests in the sound discretion of the

court.” Tibbett v. Hand, 294 F.2d 68, 73 (10th Cir. 1961). Thus, the Sixth

Amendment guarantees only effective counsel, Strickland v. Washington, 466

U.S. 668, 686 (1984), and, as we explain below, Lockhart was not constitutionally

ineffective.

      Smith also claims that his rights were violated when Lockhart, rather than

Dennison, represented him because he did not require appointed counsel and

should therefore have been allowed to choose his own attorney. Smith attached

                                         -4-
an affidavit to his appellate brief explaining this claim. But we are not free to

consider such an affidavit submitted for the first time on appeal, see Utah v. U.S.

Dep’t of Interior, 535 F.3d 1184, 1195 n.7 (10th Cir. 2008), and moreover, the

record belies Smith’s contention. Lockhart was appointed only after Smith

attested to his financial inability to employ his own counsel. Moreover, there is

no indication in the record that Smith ever attempted to fire Lockhart and replace

him with Dennison, which Smith was free to do had he been financially able.

Accordingly, reasonable jurists would agree that Smith’s Sixth Amendment rights

were not violated when Lockhart, rather then Dennison, served as trial counsel.

      Smith also complains that Lockhart was ineffective for failing to preserve

his right to appeal the denial of the motion to suppress. To establish ineffective

assistance of counsel, Smith must show (1) that his counsel’s actions fell below

an objective standard of reasonableness and (2) that this conduct prejudiced the

proceedings such that, absent counsel’s errors, the outcome would have been

different. Strickland, 466 U.S. at 687-88, 694. We employ a strong presumption

that counsel acted within the wide range of reasonable professional assistance.

Id. at 689.

      We conclude that Lockhart did not act unreasonably by failing to preserve

Smith’s right to challenge the denial of the motion to suppress. Smith had two

avenues by which he could have preserved appellate review of his motion:

proceed to trial or enter a conditional plea agreement with the government

                                         -5-
pursuant to Federal Rule of Criminal Procedure 11(a)(2). Smith does not contend

that Lockhart was ineffective for advising him not to go to trial, therefore we

confine our analysis to the conditional plea issue. Under the terms of Rule

11(a)(2), a defendant may not enter a conditional plea that preserves appellate

review of the denial of a pretrial motion without the consent of the government.

Fed. R. Crim. P. 11(a)(2). The record in this case indicates that Lockhart

diligently pursued such an agreement, but the government refused to consent. In

spite of Lockhart’s best efforts, such a plea was not available to Smith, and

Lockhart certainly did not fall below an objective standard of reasonableness by

not securing one. Reasonable jurists would agree that Smith’s trial counsel was

not constitutionally ineffective.

                                         III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal.



                                       ENTERED FOR THE COURT




                                       Carlos F. Lucero
                                       Circuit Judge




                                        -6-
