                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         December 13, 2005
                                 TENTH CIRCUIT
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,                              No. 05-6123
 v.                                                (D.C. Nos. 04-CV-896-C;
                                                         01-CR-110-C)
 DYKE CRANE, JR.,                                         (W.D. Okla.)

       Defendant - Appellant.


                                       ORDER


Before EBEL, HENRY and McKAY, Circuit Judges.


      Defendant-Appellant Dyke Crane, Jr. asks this court to grant (1) his motion

for a certificate of appealability to challenge the district court’s dismissal of his

habeas corpus petition and (2) his motion to proceed in forma pauperis. For the

reasons set forth below, we DENY both motions and DISMISS the appeal.



                                  BACKGROUND

      Crane pleaded guilty to distribution of cocaine and, in January 2002, was

sentenced to 140 months imprisonment. He appealed his conviction to this court,

arguing that his counsel provided ineffective assistance during sentencing. See

United States v. Jefferson, 63 F. App’x 439, 441 (10th Cir. 2003) (unpublished).
We dismissed that appeal for lack of jurisdiction because Crane had waived his

appellate rights in his plea agreement. See id.

      Crane then filed a motion to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255 based on the same ineffective assistance argument.

The district court denied the motion, again on the grounds that Crane’s plea

agreement waived his right to appeal or collaterally challenge his sentence. The

district court then denied Crane’s request for a certificate of appealability

(“COA”) and his motion for leave to proceed in forma pauperis pursuant to 28

U.S.C. § 1915. Before us are Crane’s renewed motions for a COA and to proceed

in forma pauperis.

                                   DISCUSSION

      Where, as here, “the district court denies a habeas petition on procedural

grounds . . . , a COA should issue when the prisoner shows, at least, that jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). The district court

provided a well-reasoned ruling that Crane had waived, by plea agreement, his




                                         -2-
right to appeal or collaterally challenge his sentence. As this procedural ruling

was correct, we must deny Crane’s motion for a COA. 1

      We have held that a defendant’s waiver of his appellate rights is binding so

long as (1) the scope of the waiver covers the present appeal, (2) the waiver was

knowing and voluntary, and (3) enforcement of the waiver would not result in a

miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (en banc). The scope of Crane’s waiver was broad, allowing for appellate

or collateral review only “in the event of an upward departure from the applicable

guideline range, or a challenge based on subsequent changes in the law reflected

in Tenth Circuit or Supreme Court cases deemed to have retroactive effect.”

Jefferson, 63 F. App’x at 441 (quotations omitted). We do not find either of these

conditions present. 2 Nor does Crane offer any argument that the challenges raised

in his § 2255 motion fall outside the scope of his waiver.




      1
       We do not reach Crane’s argument that the district court erred in denying
his § 2255 motion by ruling, in the alternative, that a prior (dismissed) conviction
was properly used to calculate his criminal history.
      2
        The district court determined that the applicable guideline range was 210-
262 months; Crane’s 140 month sentence was due to his “substantial assistance”
to the government. Moreover, as the district court noted in denying Crane’s
motion for a COA, Crane’s conviction was final before the Supreme Court issued
its Booker decision. We have specifically held that Booker does not apply
retroactively to cases on collateral review. See United States v. Price, 400 F.3d
844, 845 (10th Cir. 2005).

                                         -3-
      Additionally, Crane nowhere argues that his waiver was unknowing or

involuntary. Indeed, in disposing of Crane’s initial appeal to this court, we

specifically found that “the record reveals that Mr. Crane’s waiver was both

knowing and voluntary.” Jefferson, 63 F. App’x at 444.

      Finally, though Crane based his § 2255 motion on ineffective assistance of

counsel, we have held that only “ineffective assistance of counsel in connection

with the negotiation of the waiver” results in a miscarriage of justice. Hahn, 359

F.3d at 1327 (emphasis added). “Collateral attacks based on ineffective

assistance of counsel claims that are characterized as falling outside that category

are waivable.” United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.

2001). Crane makes no argument that his counsel’s alleged ineffective assistance

affected the voluntariness of his plea, nor does the record support such an

argument. In the face of a valid waiver of the right to collaterally challenge his

sentence, the district court was undebatably correct in denying Crane’s § 2255

motion. We therefore DENY his request for a COA. 3


      3
        We have held in the context of direct appellate review that we are
precluded from dismissing an appeal on the grounds of a waiver of appellate
rights unless the government affirmatively argues that the defendant has waived
those rights in a plea agreement. See United States v. Calderon, 428 F.3d 928,
930-31 (10th Cir. 2005). We have explained that “the government might
conclude that justice would be better served by allowing a criminal defendant to
appeal a wrongful sentence, even when the plea agreement included an appeal
waiver.” Id. at 931.
                                                                      (continued...)

                                         -4-
       Crane also renews his motion to proceed in forma pauperis. We grant such

a motion only where a defendant shows both “a financial inability to pay the

required fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (emphasis added). Further, we find

Crane’s appeal to be frivolous when he has previously been informed—including

once by this court—that he waived his right to appeal or collaterally challenge his

sentence. Thus his motion to proceed in forma pauperis must be DENIED. This

appeal shall be considered a strike. We DISMISS the appeal.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge



      3
        (...continued)
       Assuming the government must affirmatively choose to enforce a waiver of
appellate rights on collateral as well as direct review, it is not clear from the
record that the government raised waiver of appellate rights in response to
Crane’s § 2255 motion. However, a COA will only issue “when the prisoner
shows, at least, . . . that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484
(emphasis added). Thus when, as here, the district court has denied a § 2255
petition on the procedural ground of waiver of appellate rights and the defendant
seeks a COA, he bears the burden to show that the ruling was incorrect because
the government failed to raise the waiver argument in response to the petition.
Crane makes no such claim here.

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