                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                  November 30, 2012
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-6114
 v.
                                               (D.C. Nos. 5:09-CV-00671-M &
                                                    5:07-CR-00043-M-1)
 CHRISTOPHER S. SNIDER,
                                                        (W.D. Okla.)
          Defendant-Appellant.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Defendant-Appellant Christopher S. Snider, proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

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

Mr. Snider pleaded guilty in the United States District Court for the Western

District of Oklahoma to aiding and abetting the possession of stolen firearms in

violation of 18 U.S.C. §§ 922(j) and 2(a). As part of his plea agreement, Mr.

      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Snider is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
Snider waived his right to “[a]ppeal or collaterally challenge his guilty plea,

sentence and restitution imposed, and any other aspect of his conviction.” R.,

Vol. 1, Part 1, at 56 (Plea Agreement, dated Aug. 14, 2007) (emphasis added).

Mr. Snider, however, specifically preserved his right to appeal a sentence above

the applicable United States Sentencing Guidelines (“U.S.S.G.” or the

“Guidelines”) range. The district court dismissed Mr. Snider’s § 2255 motion as

barred by his plea-agreement waiver of the right to bring collateral challenges

(that is, his collateral-attack waiver). Exercising jurisdiction under 28 U.S.C.

§ 1291, we deny Mr. Snider’s application for a COA and dismiss this matter.

                                          I

      The district court sentenced Mr. Snider to 120 months’ imprisonment, a

term below the Guidelines range, for his firearms offense. Despite the waiver of

his right to appeal, Mr. Snider filed a notice of appeal (No. 08-6051). The

government moved to enforce the appeal waiver contained in the plea agreement,

pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per

curiam). We concluded that Mr. Snider had not met his burden of showing that

he felt so coerced into signing the plea agreement that coercion rendered his plea

involuntary, and that Mr. Snider’s ineffective assistance of counsel claims should

be raised (if at all) in a collateral proceeding rather than on direct appeal. See

United States v. Snider, 285 F. App’x 525, 526–27 (10th Cir. 2008). We granted




                                         -2-
the government’s motion to enforce the plea agreement and dismissed Mr.

Snider’s appeal. See id. at 527.

      Mr. Snider filed a motion to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255 in district court. Following a series of proceedings

relating to Mr. Snider’s mental condition, which are not directly relevant to our

current disposition, the district court acknowledged Mr. Snider’s stipulation of

competency to participate in post-conviction litigation and, in fact, found that he

was competent to do so. The district court then dismissed Mr. Snider’s § 2255

motion as barred by his plea agreement’s collateral-attack waiver. Mr. Snider

now seeks a COA to challenge this dismissal.

                                          II

      A COA is a jurisdictional prerequisite to our review of the merits of

a § 2255 appeal. See 28 U.S.C. § 2253(c)(1)(B); Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49

(2012) (discussing, inter alia, the “clear” jurisdictional language in § 2253(c)(1)).

We will issue a COA only if the applicant makes “a substantial showing of the

denial of a constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th

Cir. 2012) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted);

accord Clark, 468 F.3d at 713. An applicant “satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude that the issues

                                         -3-
presented are adequate to deserve encouragement to proceed further.” Dulworth

v. Jones, 496 F.3d 1133, 1136–37 (10th Cir. 2007) (quoting Miller-El v. Cockrell,

537 U.S. 322, 327 (2003)) (internal quotation marks omitted).

      When the district court denies relief “on procedural grounds, the applicant

faces a double hurdle. Not only must the applicant make a substantial showing of

the denial of a constitutional right, but he must also show ‘that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Gonzalez, 132 S. Ct.

at 648. “Where a plain procedural bar is present and the district court is correct

to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the [applicant] should

be allowed to proceed further.” Woodward, 693 F.3d at 1292 (quoting Slack, 529

U.S. at 484) (internal quotation marks omitted).

                                          III

      Mr. Snider requests relief on the following grounds: (1) the government

violated his due process rights by withholding exculpatory evidence; (2) his trial

counsel rendered ineffective assistance by not reviewing his Presentence

Investigation Report with him; (3) the government breached the plea agreement

by not supporting a downward adjustment under U.S.S.G. § 3E1.1 based upon his

acceptance of responsibility and his acceptance of the plea agreement’s terms by

                                          -4-
the deadline that the agreement established; (4) the district court improperly

enhanced his sentence for playing a leadership role in the relevant conduct; and

(5) the district court violated his constitutional rights in finding that a two-point

enhancement was warranted due to obstruction of justice.

      Pursuant to the analytic framework that the Supreme Court established,

most notably in Miller-El and Slack, we have carefully reviewed Mr. Snider’s

combined opening brief and application for COA and the record, including the

district court’s order denying Mr. Snider’s § 2255 motion. Based upon this

review, we conclude that Mr. Snider is not entitled to a COA on any of his claims

because reasonable jurists would not debate the correctness of the district court’s

decision to deny Mr. Snider relief on procedural grounds. The district court

thoughtfully applied the principles that we established in Hahn and United States

v. Cockerham, 237 F.3d 1179 (10th Cir. 2001), for assessing the legal validity of

a plea agreement collateral-attack waiver and correctly concluded that Mr.

Snider’s § 2255 motion was barred by his collateral-attack waiver. Accordingly,

because the district court was correct to invoke the procedural bar of the

collateral-attack waiver to dispose of the case, Mr. Snider cannot demonstrate that

the issues he has presented are adequate to deserve encouragement to proceed

further.

      We do pause briefly, however, to explicate our rationale regarding Mr.

Snider’s claim that the government breached the plea agreement by not endorsing

                                          -5-
a downward adjustment under U.S.S.G. § 3E1.1 for acceptance of responsibility.

It is true that “an appellate waiver is not enforceable if the Government breaches

its obligations under the plea agreement.” United States v. Rodriguez-Rivera, 518

F.3d 1208, 1212 (10th Cir. 2008). However, Mr. Snider did not raise his claim of

government plea-agreement breach on direct appeal. 2 And we conclude that this

claim does not affect our conclusion that the district court correctly found that

Mr. Snider’s § 2255 motion cannot go forward because of his collateral-attack

waiver.

      Specifically, “[§] 2255 is not available to test the legality of matters which

should have been raised on appeal,” United States v. Allen, 16 F.3d 377, 378

(10th Cir. 1994) (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir.

1992)) (internal quotation marks omitted); see also United States v. Frady, 456

U.S. 152, 165 (1982), such as Mr. Snider’s claim of government plea-agreement

breach. To overcome this procedural bar, Mr. Snider must show cause for his

failure to present the claim on direct appeal and prejudice resulting therefrom, or

that a fundamental defect occurred that inherently resulted in a complete

miscarriage of justice. See United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.


      2
            Mr. Snider did not file a brief on direct appeal. The government’s
motion to enforce the plea agreement automatically suspended the briefing
schedule. See 10th Cir. R. 27.2(C). Nonetheless, Mr. Snider’s docketing
statement indicates that he did not intend to allege as an appellate issue the
government’s purported breach of the plea agreement.


                                        -6-
1993); see also Massaro v. United States, 538 U.S. 500, 504 (2003) (noting the

“general rule that claims not raised on direct appeal may not be raised on

collateral review unless the petitioner shows cause and prejudice”); Frady, 456

U.S. at 167–68 (applying the cause and prejudice standard where the petitioner’s

§ 2255 motion alleged trial errors that had not been objected to at trial nor

challenged on appeal).

      Mr. Snider presents no cause for his failure to assert his claim of

government plea-agreement breach on direct appeal. He simply re-asserts his

argument that the plea agreement was breached. Nor has Mr. Snider shown

prejudice or a fundamental defect that resulted in a complete miscarriage of

justice. Accordingly, Mr. Snider’s claim that the government breached the plea

agreement does not alter our conclusion that reasonable jurists would not debate

the correctness of the district court’s determination that his § 2255 motion is

barred by the plea agreement’s collateral-attack waiver.




                                         -7-
                                        IV

      For the foregoing reasons, we deny Mr. Snider’s request for a COA and

dismiss this matter. 3

                                      ENTERED FOR THE COURT


                                      Jerome A. Holmes
                                      Circuit Judge




      3
              Our clerk’s office construed Mr. Snider’s filing of July 16, 2012 as a
motion to supplement the record with the affidavit of a law enforcement agent. In
light of our disposition of this matter, we deny that motion as moot.

                                        -8-
