                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           February 27, 2007
                                        TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.                                                   No. 06-3289
                                                (D. Ct. No. 05-CV-3367-CM and 03-CR-
 ADAM DAVIS,                                                  20123-CM-2)
                                                                (D. Kan.)
                Defendant - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


       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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Mr. Davis, a federal prisoner proceeding pro se, seeks a certificate of appealability

(“COA”) to appeal the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or

correct his sentence. See 28 U.S.C. § 2253(c)(1)(B). We have jurisdiction under 28




      *
        This order and judgment is not binding precedent except under the doctrines of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 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
U.S.C. §§ 1291 and 2253. Because we conclude that reasonable jurists would agree with

the District Court’s conclusion that Mr. Davis waived his right to collaterally attack his

sentence, we deny his application for a COA and dismiss his appeal.

                                   I. BACKGROUND

       On June 7, 2004, Mr. Davis pleaded guilty to one count of conspiracy to distribute

and possess with the intent to distribute more than fifty grams of cocaine base in violation

of 21 U.S.C. § 846. As part of his plea agreement, Mr. Davis waived “any right to appeal

or collaterally attack any matter in connection with this prosecution, conviction, and

sentence.” Specifically, the plea agreement provided:

       [T]he defendant knowingly waives any right to appeal a sentence imposed
       which is within the guideline range determined appropriate by the court.
       The defendant also waives any right to challenge a sentence or manner in
       which it was determined in any collateral attack, including, but not limited
       to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by
       United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)]. In
       other words, the defendant waives the right to appeal the sentence imposed
       in this case except to the extent, if any, the court departs upwards from the
       applicable sentencing range determined by the court.

       Following the acceptance of Mr. Davis’s plea, the District Court sentenced him to

121 months’ imprisonment. Mr. Davis did not appeal his conviction or sentence. On

September 13, 2005, Mr. Davis filed a pro se § 2255 motion claiming: (1) the sentencing

court erred by adding two criminal history points pursuant to United States Sentencing

Guidelines (“U.S.S.G.” or “Guidelines”) § 4A1.1(d) for committing a crime while under a

criminal justice sentence; (2) the sentencing court erred by applying the enhancement for

management or supervision of a criminal activity to his sentence pursuant to U.S.S.G.

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§ 3B1.1(c); and (3) his attorney was ineffective for failing to file a notice of appeal on

two sentencing issues. The District Court rejected these claims, holding that Mr. Davis

waived his right to collaterally attack his sentence under the plea agreement. See United

States v. Davis, No. 03-20123-02-CM, 2006 WL 2135103 (D. Kan. July 27, 2006). The

District Court denied Mr. Davis’s application for a COA. See Davis v. United States, No.

03-20123-02-CM, 2006 WL 2524150 (D. Kan. Aug. 22, 2006). Mr. Davis now raises the

same three issues in his application to this Court.

                                     I. DISCUSSION

       A COA may issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires Mr. Davis to

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.” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quotations omitted). The District Court’s well-reasoned opinion

concluded that Mr. Davis waived by plea agreement his right to collaterally challenge his

sentence. After carefully reviewing the District Court’s opinion and the record in this

case, we conclude that jurists of reason would not find the District Court’s waiver

determination debatable.

       In United States v. Cockerham, we held “that a waiver of collateral attack rights

brought under § 2255 is generally enforceable where the waiver is expressly stated in the

plea agreement and where both the plea and the waiver were knowingly and voluntarily

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made.” 237 F.3d 1179, 1183 (10th Cir. 2001). A waiver of postconviction rights is

unenforceable only when the defendant claims he received ineffective assistance of

counsel in the negotiation of the plea or wavier. Id. at 1187. Accordingly, Mr. Davis’s

first two claims, related to sentencing, are barred by the waiver provision of the plea

agreement.1 In his remaining claim, Mr. Davis argues that his attorney failed to provide

him with effective assistance of counsel by failing to file a notice of appeal on two

sentencing issues. This claim does not go to the validity of the waiver or his plea

agreement. Nor has Mr. Davis presented any other evidence that he entered into the

waiver or plea unknowingly or involuntarily. As the District Court noted, it is apparent

from the record that Mr. Davis fully understood the consequences of the plea agreement

and entered into it knowingly and voluntarily. The sentencing court conducted a Rule 11

plea colloquy, see Fed. R. Crim. P. 11(b), and explicitly determined that:

       [T]he defendant . . . is fully competent and capable of entering an informed
       plea, that the defendant is aware of the nature of the charges and the
       consequences of the plea, and that the plea of guilty is a knowing and
       voluntary plea, supported by an independent basis in fact containing each of
       the essential elements of the offense.

       Thus, we conclude that Mr. Davis’s ineffective assistance of counsel claim is also

subject to waiver. Because Mr. Davis waived his right to attack his conviction



       1
        An exception to the waiver within the plea agreement itself permits Mr. Davis to
challenge upward departures. A “departure” is the imposition of a sentence outside the
applicable Guideline range. See U.S.S.G. § 1B1.1. cmt. app. n.1(E). Because the District
Court simply applied the sentencing Guidelines and sentenced Mr. Davis within that
range, the court did not upwardly depart. Mr. Davis’s appeal waiver therefore forbids a
challenge to his sentence.

                                            -4-
collaterally under 28 U.S.C. § 2255, his claims are waived.

                                  III. CONCLUSION

      For the foregoing reasons, we DENY Mr. Davis’s application for a certificate of

appealability and DISMISS his appeal.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Chief Circuit Judge




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