                                                                                FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                       February 18, 2009
                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                              No. 08-7036
 v.                                               (D.C. Nos. 6:07-CV-00366-RAW and
                                                        6:04-CR-00104-RAW-1)
 CHRISTOPHER DALE MASTERS,                                    (E.D. Okla.)

           Defendant - Appellant.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


       Defendant Christopher Dale Masters seeks a certificate of appealability (COA) that

would allow him to appeal from the district court’s dismissal of his motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence.1 See 28 U.S.C. §

2253(c)(1)(B). Affording solicitous consideration to Mr. Masters’s pro se filings, see Van

       *
               This Order is not binding precedent, except under the doctrines of law of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. After examining the
briefs and the appellate record, this three-judge panel has determined unanimously that
oral argument would not be of material assistance in the determination of this matter. See
Fed. R. App. P. 34(a). The case is therefore ordered submitted without oral argument.
       1
             Because the district court did not address the issuance of a COA, its failure
to issue a COA was deemed a denial pursuant to Fed. R. App. P. 22(b)(1) and 10th Cir. R.
22.1(C).
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we conclude that Mr.

Masters has failed to make “a substantial showing of the denial of a constitutional right.”

See 28 U.S.C. § 2253(c)(2). We accordingly deny his request for a COA and dismiss his

appeal.

                                   I. BACKGROUND

       Mr. Masters entered a conditional guilty plea to one count of maintaining a place

for the purpose of manufacturing, distributing, and using methamphetamine in violation

of 21 U.S.C. § 856(a)(1). This Court denied his appeal of the denial of his suppression

motion—the suppression issue having been expressly reserved for appeal in his plea

agreement. See generally United States v. Masters, 172 F. App’x 230 (10th Cir. 2006).

Mr. Masters then filed a 28 U.S.C. § 2255 motion in district court to vacate, set aside, or

correct his sentence. The government filed a motion to enforce the plea agreement it had

entered into with Mr. Masters, arguing that under the terms of the plea agreement Mr.

Masters had waived his right to collaterally attack his conviction and sentence. Although

Mr. Masters did not respond to the government’s motion, the district court considered

whether Mr. Masters had met his burden of showing that the plea agreement should not

be enforced.

       In concluding that Mr. Masters had not met this burden, the district court found

that (1) Mr. Masters’s claims fell within the scope of the plea agreement waiver; (2) Mr.

Masters’s waiver of his right to collaterally attack his sentence was knowing and

voluntary; and (3) enforcement of the plea agreement waiver would not result in a

                                             -2-
miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).

The district court therefore granted the government’s motion and dismissed Mr. Masters’s

§ 2255 motion. Mr. Masters now seeks to appeal.

                              II. STANDARD OF REVIEW

       To make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), Mr. Masters must establish “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) (internal quotation marks omitted). Our

inquiry does not require a “full consideration of the factual or legal bases adduced in

support of the [applicant’s] claims,” but rather “an overview of the claims . . . and a

general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

                                    III. DISCUSSION

       Generally, a waiver of collateral attack rights under § 2255 is enforceable when

“the waiver is expressly stated in the plea agreement and where both the plea and the

waiver were knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d

1179, 1183 (10th Cir. 2001). Having thoroughly reviewed Mr. Masters’s application,

both parties’ briefs,2 and the entire record before us, we agree with the district court that

       2
               Mr. Masters submitted an untimely reply brief which was docketed as
received, but not filed. For purposes of this appeal, we have considered the brief in its
entirety, giving Mr. Masters the benefit of the liberal construction afforded to pro se
filings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); cf. United States v. King, 49
F. App’x 831, 832 n.1 (10th Cir. 2002).

                                              -3-
Mr. Masters’s § 2255 motion is properly precluded by enforcement of the plea agreement

waiver because his claims fall within the scope of the plea agreement waiver, the waiver

of his right to collaterally attack his conviction and sentence was knowing and voluntary,

and enforcement of the waiver will not result in a miscarriage of justice. See Hahn, 359

F.3d at 1325-29.

       Generally, regarding the scope of the waiver, any rights that are not expressly

reserved in the plea agreement are waived. United States v. Ochoa-Colchado, 521 F.3d

1292, 1299 (10th Cir. 2008). We narrowly construe the waiver in favor of Mr. Masters,

but we also will hold him to its lawful terms. Hahn, 359 F.3d at 1325, 1328. Mr. Masters

makes much of the fact that the precise statute “28 U.S.C. § 2255” was not included in the

text of the waiver or specifically mentioned at the colloquy. However, by signing the

plea agreement, Mr. Masters expressly and specifically waived “any appeal rights

conferred by [18 U.S.C. § 3742],” other than appealing the denial of motion to suppress,

“any post[]conviction proceedings, and any habeas corpus proceedings.” Aplee. Br.

Attach. B, at 11 (Plea Agreement, dated Dec. 3, 2004) (emphasis added).

       In Cockerham, we held that identical “broad language,” combined with the Fed. R.

Crim. P. 11 colloquy, waived the defendant’s right to bring a § 2255 collateral attack on

his sentence and conviction, although there was no indication from the opinion that §

2255 was specifically mentioned in the text of the plea agreement waiver. See

Cockerham, 237 F.3d at 1189-90. Further, Mr. Masters “knowingly waive[d] the right to

appeal the sentence and agree[d] not to contest such sentence in any post[]conviction

                                            -4-
proceeding.” Aplee. Br. Attach. B, at 11 (emphasis added). Thus, Mr. Masters’s right to

raise a collateral challenge falls within the scope of the rights waived by virtue of the plea

agreement.

       Liberally construed, the ineffective assistance of counsel arguments Mr. Masters

set forth in his § 2255 motion assert that due to his counsel’s deficient performance, he

did not knowingly and voluntarily enter into his plea agreement. Mr. Masters attempts to

extend this argument in his application for COA and argues that his plea was not knowing

in relation to the waiver. In determining whether Mr. Masters knowingly and voluntarily

waived his rights, we primarily examine two factors.

       First, we look at “whether the language of the plea agreement states that the

defendant entered the agreement knowingly and voluntarily.” Hahn, 359 F.3d at 1325.

Here, the plea agreement required Mr. Masters to sign and acknowledge that he

“expressly” and “knowingly” waived his appellate and postconviction rights. Mr.

Masters acknowledged via his signature that he had carefully reviewed the plea

agreement with his attorney, fully understood it, and “voluntarily agree[d] to it without

reservation.” Aplee. Br. Attach. B, at 15.

       Second, we examine whether an adequate Fed. R. Crim. P. 11 colloquy took place.

Hahn, 359 F.3d at 1325. The transcript of the change-of-plea hearing leaves no room for

doubt that Mr. Masters entered into his plea agreement knowingly and voluntarily.

Specifically, the transcript reveals that after Mr. Masters informed the district court of his

mental and physical condition, the court, the government, Mr. Masters’s attorney, and Mr.

                                             -5-
Masters himself all agreed that Mr. Masters was competent to enter his guilty plea.

Further, when the government accurately summarized the terms of the plea agreement to

the district court, both Mr. Masters and his attorney stated that the summary reflected

their understanding of the agreement. Mr. Masters responded affirmatively when the

district court specifically asked him whether he understood that he was giving up his

postconviction rights regarding his sentence. Mr. Masters’s original attorney signed her

acknowledgment that the plea agreement set forth the entire agreement between the

government and her client. At sentencing, Mr. Masters’s replacement counsel also

acknowledged the contents of the agreement and did not object to the waiver or to the

nature of Mr. Masters’s entry into the agreement. Thus, the plea agreement and the Fed.

R. Crim. P. 11 colloquy, along with other in-court discussion, demonstrate that Mr.

Masters entered into his plea and waiver knowingly and voluntarily. See Cockerham, 237

F.3d at 1188-89.

       Further, even a knowing and voluntary waiver of a right that falls within the scope

of the plea agreement waiver is subject to certain exceptions, the existence of which

would render enforcement a “miscarriage of justice.” These exceptions are found:

              [1] where the district court relied on an impermissible factor such as
              race, [2] where ineffective assistance of counsel in connection with
              the negotiation of the waiver renders the waiver invalid, [3] where
              the sentence exceeds the statutory maximum, or [4] where the waiver
              is otherwise unlawful.

Hahn, 359 F.3d at 1327 (internal quotation marks omitted). A waiver is “otherwise

unlawful” if subject to an error that “‘seriously affect[s] the fairness, integrity or public

                                              -6-
reputation of judicial proceedings.’” Hahn, 359 F.3d at 1327 (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)).

       While the § 2255 motion filed by Mr. Masters in district court raised four

allegations of ineffective assistance of counsel, none of these fell within the second

exception, as none of them touched upon the validity of the plea agreement or the waiver.

Cockerham, 237 F.3d at 1187 (“[A] plea agreement waiver of postconviction rights does

not waive the right to bring a § 2255 petition based on ineffective assistance of counsel

claims challenging the validity of the plea or the waiver.”). In his fourth ground of

ineffectiveness, Mr. Masters did allege that his counsel was “overall” ineffective, but his

supporting facts did not speak to counsel’s conduct relative to his plea agreement or his

collateral attack waiver. R., Vol. I, Doc. 1, at 6 (Mot. Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody, filed Nov. 1, 2007).3

       Therefore, to the extent that Mr. Masters now attempts to argue as grounds for a

COA that his counsel was ineffective with regard to the plea agreement—such that the

ineffective assistance claim would not be waived—he did not make this argument to the

district court. More specifically, Mr. Masters’s attempt in his application for a COA to


       3
              As supporting facts, Mr. Masters averred:

              My attorney’s personal tragedy and sickness inhibited the assistance
              she provided causing indeterminate prejudice to my defense. I
              finally received alternative representation but most of the damage
              had already occurred.

R., Vol. I, Doc. 1, at 6 (all-capitals typeface omitted).

                                              -7-
recast his “overall” ineffectiveness argument as related to the validity of the plea

agreement waiver is not convincing, as his “vague, arguable reference[]” to that point in

district court was not sufficient to preserve the issue for appellate review. Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 721-22 (10th Cir. 1993). Because we generally

will not consider issues raised on appeal that were not presented to the district court, id. at

720-21, Mr. Masters’s presentation of this argument at this juncture is unavailing.

        Moreover, even assuming arguendo that Mr. Masters’s claim in his § 2255

motion—that his counsel was ineffective “overall”—could equate to his having presented

to the district court a claim that challenged the validity of the plea or the waiver, he has

not set forth facts that arguably would demonstrate that the claimed ineffectiveness of his

counsel rendered the waiver invalid. For the first time in his reply brief on appeal, Mr.

Masters circuitously asserts that his counsel’s ineffectiveness, which resulted in the denial

of the motion to suppress, “establishe[d] a direct connection to the negotiation of the

waiver” because “[t]he waiver would not have been necessary had counsel effectively

presented the suppression motion.” Aplt. Reply Br. at 4. However, this assertion does

not reach the requisite level of connection to the plea agreement, i.e., it is not a collateral

attack that sufficiently “pertains to the validity of the plea.” Cockerham, 237 F.3d at

1187.

        Also not persuasive is Mr. Masters’s novel, converse argument that by alleging

ineffective assistance of counsel regarding his plea agreement waiver he is essentially

appealing the denial of the motion to suppress—the one ground that was specifically

                                              -8-
exempted by the plea agreement waiver. As noted above, this Court already has rejected

Mr. Masters’s appeal of the denial of his motion to suppress and Mr. Masters is only

deemed by law to have reserved those suppression theories asserted in that motion. See

Ochoa-Colchado, 521 F.3d at 1299 (“A reservation of the right to appeal a specific

pretrial ruling by the district court extends only to theories raised in the challenged

ruling.”).

       For an ineffective assistance of counsel claim to fall within this exception, it must

bear more than a tangential relationship to the plea agreement waiver. To withstand

enforcement, the claim must specifically “challenge counsel’s representation in

negotiating or entering the plea or the waiver.” Cockerham, 237 F.3d at 1187. Mr.

Masters’s assertions of ineffective assistance regarding other aspects of the criminal

proceedings against him do not amount to such a claim.

       Finally, we discern no other basis to find a miscarriage of justice. There is nothing

in the record to suggest that his claims are subject to the other exceptions to the waiver:

the district court did not rely on an impermissible factor such as race, the sentence does

not exceed the statutory maximum, and the waiver is not otherwise unlawful. See Hahn,

259 F.3d at 1327. Thus, enforcement of the plea agreement waiver to bar Mr. Masters’s §

2255 motion will not result in a miscarriage of justice.

                                    IV. CONCLUSION

       As outlined herein, we agree with the district court that Mr. Masters’s § 2255

motion is properly precluded by the waiver in his plea agreement. No reasonable jurist

                                              -9-
could debate the propriety of the district court’s ruling on this issue. We accordingly

DENY Mr. Masters’s request for a COA and DISMISS his appeal.



                                                   Entered for the Court



                                                   Jerome A. Holmes
                                                   Circuit Judge




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