                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      January 28, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 07-3009
       v.                                      (D.C. Nos. 05-CV-3375-CM and
                                                     03-CR-20003-CM)
 ANTONIO C. MOORE,                                     (D.C. No. Kan.)

              Defendant - Appellant.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY
                        AND DISMISSING APPEAL


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      Moore was charged, along with nine others, in a nine-count indictment. He

entered into a plea agreement, pursuant to which he pled guilty to one count of

conspiracy to distribute and to possess with intent to distribute cocaine base

(crack) in violation of 21 U.S.C. § 846. The plea agreement contained a waiver

of appeal and collateral attack, which provided, in pertinent part:

      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. The defendant is aware that Title 18,
      U.S.C. § 3742 affords a defendant the right to appeal the conviction
      and sentence imposed. By entering into this agreement, the
      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 guideline range determined by the court.

(R. Vol. I, Doc. 409, Ex. 1.) Prior to accepting Moore’s guilty plea, the court

questioned Moore to ensure he understood the consequences of his plea. The

court determined Moore’s plea was knowing and voluntary and sentenced Moore

to 188 months imprisonment, which was within the calculated sentencing

guidelines range. Moore did not file a direct appeal.

      Approximately one year later, Moore filed a pro se motion to vacate, set

aside or correct sentence by a person in federal custody under 28 U.S.C. § 2255.

Moore claimed: (1) his counsel was ineffective during plea negotiations and

sentencing; (2) his plea was not made knowingly, intelligently and voluntarily;

and (3) his counsel was ineffective in not filing a direct appeal of his sentence.

The government responded by filing a motion to enforce the waiver provision in

the plea agreement.

      The district court partially denied Moore’s motion and partially granted the

government’s motion. It concluded Moore’s plea was knowing and voluntary and

determined his claim of ineffective assistance of counsel at sentencing was within

the scope of the plea agreement waiver. As to Moore’s claim that his counsel was


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ineffective in negotiating the plea agreement, the district court held it fell outside

the scope of the waiver but determined Moore failed to demonstrate prejudice as

required by Strickland v. Washington, 466 U.S. 668 (1984). It also concluded

Moore’s claim that his counsel was ineffective in failing to file a direct appeal

fell outside the scope of the waiver and Moore was entitled to an evidentiary

hearing on the issue. After this hearing, at which Moore was represented by

counsel, the district court denied the remainder of Moore’s motion. Moore filed a

notice of appeal and a request for a COA. The court found Moore had not made a

substantial showing of the denial of a constitutional right and denied his request

for a COA.

      Appearing pro se 1 and in forma pauperis, Moore renews his request for a

COA to this Court. See 28 U.S.C. § 2253(c)(1)(A); F ED . R. A PP . P. 22(b)(1).

The denial of a motion for relief under § 2255 may be appealed only if the district

court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(B). A COA is a

jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). We issue a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Moore must show

“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


      1
       We liberally construe pro se pleadings. See Ledbetter v. City of Topeka,
Kan., 317 F.3d 1183, 1187 (10th Cir. 2003).

                                          -3-
presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Moore has satisfied this burden, we undertake “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 537 U.S. at 338.

      Moore has filed two separate requests for a COA, each raising the same

argument — his constitutional rights were violated by the district court’s

calculation of his criminal history. We agree with the district court that Moore

has waived his right to assert this argument. A provision in a plea agreement

waiving the right to appeal and collaterally attack a conviction or sentence is

enforceable if (a) the disputed issue falls within the scope of the waiver; (b) the

defendant knowingly and voluntarily waived his rights; and (c) the waiver will

not result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315,

1325 (10th Cir. 2004) (en banc). These three prongs are satisfied here.

      Though we are not required to do so, we have reviewed Moore’s proposed

opening brief, the district court’s orders, and the entire record on appeal pursuant

to the framework set out in Miller-El. 2 Moore is not entitled to a COA on the

other issues raised in his § 2255 motion. Jurists of reason would not disagree

with the district court’s resolution of Moore’s §2255 motion and it is not

reasonably subject to debate.



      2
        We have considered the arguments raised by Moore before the district
court and in his proposed opening brief, even though not all of them were raised
in his COA requests with this Court.

                                          -4-
We DENY Moore’s request for COA and DISMISS his nascent appeal.

                                   ENTERED FOR THE COURT


                                   Terrence L. O’Brien
                                   Circuit Judge




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