                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               September 5, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 13-6096
       v.                                            (W.D. Oklahoma)
 LAVERTISE CUDJOE,                          (D.C. Nos. 5:06-CR-00248-R-3 and
                                                   5:12-CV-01231-R)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Defendant LaVertise Antwion Cudjoe filed a motion for relief under

28 U.S.C. § 2255 in the United States District Court for the Western District of

Oklahoma. The district court denied the motion. Defendant now seeks a

certificate of appealability (COA) from this court so that he may appeal the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to

appeal denial of § 2255 relief). We deny a COA and dismiss the appeal.

I.    BACKGROUND

      In October 2006, Defendant was charged on six counts of an 85-count

multidefendant indictment involving drug and firearm violations. The following

February he pleaded guilty to two counts: (1) conspiring to distribute various

controlled substances, see 21 U.S.C. §§ 841(a)(1), 846; and (2) carrying a firearm
in relation to a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A). The

remaining counts against him were dismissed. After his first sentence was

vacated on appeal, Defendant was resentenced on October 8, 2009, to 420

months’ imprisonment.

      On November 5, 2012, Defendant filed his § 2255 motion, arguing that his

plea was not knowing and voluntary for two reasons: (1) neither defense counsel

nor the district court adequately explained that Defendant was waiving his right to

challenge his sentence under 18 U.S.C. § 3582; and (2) counsel was ineffective

because he (a) pressured Defendant into pleading guilty, (b) failed to adequately

warn Defendant of the range of possible sentences and of potential guideline

enhancements, (c) did not inform Defendant of amendments to the crack-cocaine

guidelines under consideration (but not yet enacted) by the United States

Sentencing Commission, (d) failed to investigate defenses or interview witnesses,

(e) never informed Defendant of the elements of conspiracy, and (f)

misrepresented the strength of the government’s evidence, in particular failing to

“explain[]” a chart prepared by the government, which revealed that his role in

the conspiracy was minimal, R. at 241.

      The district court denied Defendant’s motion. It determined that he had not

shown prejudice from any failure of the court or defense counsel to explain that

he was waiving his rights under § 3582(c)(2) because he had not alleged that he

would have filed such a motion, and he was not eligible for a sentence reduction

                                         -2-
under the statute anyway. And it ruled that even if counsel had been ineffective

in instructing Defendant to enter the plea, Defendant had not alleged that he

would have gone to trial but for counsel’s errors.

      Defendant then filed three motions and an affidavit seeking to amend his

§ 2255 motion to allege that he would not have pleaded guilty if he had been

properly informed. The district court denied the motions. It said that even if it

permitted Defendant to amend his pleadings, Defendant could not prevail because

(1) his claims of ineffectiveness were conclusory, (2) it was improbable that

Defendant would have gone to trial because he would have faced four more

counts and a life sentence, and (3) the plea agreement properly informed

Defendant of his potential sentences and the consequences of his waiver.

II.   DISCUSSION

      We construe Defendant’s pleadings liberally because he is proceeding pro

se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A COA will

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 standard requires “a

demonstration that . . . includes showing 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). In other words, the applicant must show that

                                         -3-
the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id.

      First, Defendant argues that his plea could not have been knowing and

voluntary because facts not mentioned in the indictment were used to enhance his

sentence. But Defendant failed to raise this argument in district court. See

Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (grounds for relief not

raised in district court are waived).

      Second, it is indisputable that Defendant did not meet his burden of

showing that his waiver of possible § 3582 relief was unknowing or involuntary.

See United States v. Tanner, 721 F.3d 1231, 1233 (10th Cir. 2013) (per curiam)

(“[It] is the defendant who bears the burden of demonstrating his waiver was not

knowing and voluntary.” (brackets and internal quotation marks omitted)). Even

if the Rule 11 colloquy was deficient or counsel failed to inform Defendant of the

consequences of his waiver, the plea agreement clearly stated that Defendant was

“knowingly and voluntarily” waiving his right to “[a]ppeal, collaterally challenge,

or move to modify under 18 U.S.C. § 3582(c)(2) or some other ground, his

sentence as imposed by the Court and the manner in which the sentence is

determined.” R. at 135; see Tanner, 721 F.3d at 1234 (“In considering the totality

of the circumstances [regarding whether a plea was knowing and voluntary],

either the express language of the plea agreement, if sufficiently clear, detailed,

and comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be

                                         -4-
enough to conclude the waiver was knowing and voluntary.”). In any event, no

relief has been available to Defendant under § 3582, so he was not prejudiced by

any flaw in the Rule 11 colloquy or error by defense counsel.

      Third, to establish ineffective assistance of counsel, Defendant has the

burden of overcoming “a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Strickland v. Washington,

466 U.S. 668, 689 (1984). Then he must demonstrate that the “deficiencies in

counsel’s performance [were] prejudicial.” Id. at 692. Because Defendant

challenges his guilty plea based on ineffective assistance of counsel, he must

show “a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985) (footnote omitted).

      Reasonable jurists would not debate the district court’s rejection of

Defendant’s ineffectiveness claims because (1) even if his account of his

communications with counsel is accepted as true, it does not establish that he was

improperly pressured into pleading guilty; (2) the plea agreement informed him of

the maximum possible sentence he could receive, the amount of crack cocaine

attributable to him, and the applicable guideline enhancements; (3) defense

counsel was not responsible for anticipating changes to the crack-cocaine

guidelines; (4) he has failed to describe what new exculpatory evidence or helpful

law would have been discovered through additional factual and legal research; (5)

                                         -5-
the plea agreement informed him of the elements of conspiracy; and (6) defense

counsel correctly told him that the government’s evidence against him was strong

(it included the discovery of drugs at Defendant’s residence and two purchases

from him by a confidential informant or informants). (In the face of this

evidence, he has failed to show how the case against him was weakened by a

government chart allegedly limiting his involvement in the conspiracy to

participation in a mortgage fraud.)

III.   CONCLUSION

       We DENY a COA and DISMISS the appeal. Defendant’s motion to

proceed in forma pauperis is DENIED.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




                                        -6-
