                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                           DEC 17 2002
                       UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                                 Clerk
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                          No. 02-6250
 v.                                                 (D.C. Nos. CIV-02-855-R
                                                        & CR-00-180-R)
 ABRAHAM LINCOLN KERNS,                                (W. D. Oklahoma )

           Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.



          Pro se petitioner Abraham Lincoln Kerns, a federal prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or

correct his sentence. We conclude that Kerns waived his right to challenge his

sentence and deny the certificate of appealability.




      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                                                 I

       On March 23, 2001, Kerns pled guilty to two counts of using a telephone to

facilitate a conspiracy to possess with intent to distribute and to distribute a

mixture of substance containing a detectable amount of phencyclidine (PCP), in

violation of 21 U.S.C. § 843(b). As part of the plea agreement, Kerns waived his

right to appeal or collaterally challenge his sentence provided it is within or

below the applicable guideline range.      Based on this plea, Kerns received two

sentences of forty-eight months — to run consecutively — for a total sentence of

ninety-six months imprisonment.

       Notwithstanding the waiver, Kerns filed a § 2255 petition in district court,

challenging his sentence on several grounds. First, he argued that the court’s

attribution of a drug quantity to him violated       Apprendi v. New Jersey , 530 U.S.

466 (2000). Second, he challenged his sentence on the ground that the court

improperly imposed consecutive rather than concurrent sentences for the two

counts. Third, he claimed he received ineffective assistance of counsel.

       In denying Kerns’s § 2255 petition, the district court relied on his waiver of

his right to appeal or collaterally challenge his sentence in his plea agreement.

United States v. Kerns , CR-00-180-R (W. D. Okla. Jul. 11, 2002). Finding that

Kerns’s assertions of ineffective assistance of counsel did not challenge the


                                             -2-
validity of the plea or the waiver and that the sentence imposed was within the

applicable guideline range, the district court concluded that Kerns’s waiver was

enforceable and that his collateral challenge to his sentence was therefore barred.

Id.

                                            II

       Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),

Kerns must obtain a certificate of appealability in order to receive appellate

review of the district court’s denial of his § 2255 petition. 28 U.S.C. §

2253(c)(1)(B). The district court rejected Kerns’s COA application.

Consequently, we treat Kerns’s notice of appeal as a renewed application for a

COA. Fed. R. App. P. 22(b);       Slack v. McDaniel , 529 U.S. 473, 483 (2000).

       We may issue a COA only if an applicant “has made a substantial showing

of the denial of a constitutional right.” § 2253(c)(2). Without reaching the merits

of his underlying constitutional claims, the district court dismissed Kerns’s

petition on procedural grounds, namely his waiver. In this situation, in order to

obtain a COA, Kerns must establish “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 , 529 U.S. at 484 (emphasis added).

Because Kerns proceeds pro se, we must liberally construe his petition.     McBride


                                           -3-
v. Deer , 240 F.3d 1287, 1289 (10th Cir. 2001). We interpret his application to set

forth two arguments. First, he argues that he received ineffective assistance of

counsel which should overcome his waiver. Second, he argues that the sentence

imposed exceeded the statutory maximum.

                                           A

      We interpret Kerns’s application to argue that, contrary to the district

court’s ruling, his attorney’s ineffective assistance of counsel rendered Kerns’s

waiver of collateral challenge unenforceable. In   United States v. Cockerham    , 237

F.3d 1179, 1187 (10th Cir. 2001), we held:

      [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.
      Collateral attacks based on ineffective assistance of counsel claims
      that are characterized as falling outside that category are waivable.

Consequently, even if we concluded that Kerns received ineffective assistance of

counsel, this would not suffice to render the waiver unenforceable. Rather, Kerns

must show that the ineffective assistance of counsel operated to cast doubt on the

validity or voluntariness of his plea or waiver.

      Kerns argues he received ineffective assistance of counsel on the grounds

that his attorney withdrew the objection to the quantities of drugs attributable to

Kerns during sentencing, and failed to object to the ultimate sentence. These

alleged deficiencies, however, do not speak to the voluntariness or validity of


                                           -4-
Kerns’s guilty plea or the waiver provision. Allegations of his attorney’s conduct

after the plea was entered do not suggest that the entry of Kerns’s plea and his

assent to waiver was involuntary.

       In addition, Kerns argues that his attorney assured him that he would

receive no more than a forty-eight-month sentence of incarceration, and that

Kerns would not have pled guilty but for this assurance. According to Kerns,

these events constituted ineffective assistance of counsel rendering his waiver

involuntary and unenforceable. A guilty plea is deemed to be involuntary when

the prosecutor promises a certain sentence but subsequently breaks that promise.

Machibroda v. United States , 368 U.S. 487, 493 (1962). Moreover, some courts

have suggested that a guilty plea may be deemed involuntary when defense

counsel represents that “by prearrangement with the prosecutor or the court, a

plea of guilty will not result in greater than a given punishment when, in fact, a

greater punishment is imposed,”         Allison v. Blackledge , 533 F.2d 894, 897 (4th

Cir. 1976) (citations omitted), reasoning that “[s]uch a representation is far

different from a mere prediction by counsel as to the length of sentence which is

likely to result from a guilty plea.”     Id. In the present case, however, Kerns does

not allege that his attorney’s representations were anything but that — mere

predictions as to the length of sentence. Kerns does not allege that his attorney’s

representations were made pursuant to an agreement with the prosecutor or the


                                               -5-
judge. Consequently, even if we accept Kerns’s bald assertion that his attorney

promised he would receive only forty-eight months when he in fact received

ninety-six months, we cannot conclude that this constitutes a challenge to the

voluntariness or validity of his guilty plea       or waiver. Moreover, his assertions

contradict the explicit terms of his guilty plea and the plea agreement, both of

which specify that the maximum penalty he would receive was four years           for each

count . As he pled guilty to two counts, this indicates he was aware that he faced

the possibility of a total ninety-six month term of imprisonment. In addition, he

stated in his guilty plea that no one had made any promises to him inducing him

to plead. For these reasons, we conclude that Kerns’s allegations of ineffective

assistance of counsel do not speak to the voluntariness or validity of his guilty

plea or waiver. Consequently, they do no suffice to overcome enforcement of his

waiver.

                                               B

       Additionally, Kerns argues that his sentence exceeds the statutory

maximum for his crimes. If true, this would overcome his waiver because the

plea agreement provided for waiver of his right to challenge his sentence “as

imposed by the Court and the manner in which the sentence is determined,

provided the sentence is within or below the applicable guideline range

determined by the court to apply to this case.” (R. Doc. 30 at 5.)        The sentencing


                                               -6-
court found Kerns’s total offense level to be 31, and his criminal history category

to be III. Consequently, the Sentencing Guidelines dictate a range of between 135

to 168 months’ imprisonment. U.S.S.G. Ch. 5, Pt. A.          Kerns pled guilty to two

counts of violating § 843, which provides that “any person who violates this

section shall be sentenced to a term of imprisonment of not more than four years,

a fine of not more than $30,000, or both.” § 843(d). Consequently, he received

two sentences of forty-eight months each to run consecutively, for a total sentence

of ninety-six months imprisonment. As ninety-six months falls below the

applicable guideline range, Kerns may not collaterally attack his sentence.

                                            III

       In sum, we conclude that no jurist would debate the propriety of the district

court’s finding that Kerns’s waiver of his right to collaterally attack his sentence

was valid and enforceable, thereby barring his present petition. Because we find

the district court’s dismissal on procedural grounds proper, we need not proceed

to analyze the merits of his underlying constitutional claims.      Slack , 529 U.S. at

484–85. Consequently, Kerns’s application for a COA is           DENIED and this

matter is DISMISSED.        Appellant’s motion to proceed in forma pauperis is

GRANTED . The mandate shall issue forthwith.

                                          ENTERED FOR THE COURT

                                          Carlos F. Lucero
                                          Circuit Judge

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