                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 27, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

          v.                                            No. 09-4090
                                                (Case No. 2:07-CV-00158-TS)
 CAILE E. NOBLE,                                          (D. Utah)

               Defendant-Appellant.


                                      ORDER *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Appellant, a pro se federal prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2255 habeas petition. Appellant pled

guilty in the District of Utah to possession of methamphetamine with intent to

distribute. In his plea agreement, he waived his right to appeal or collaterally

attack the sentence imposed unless it was above the maximum statutory limit or

involved an “upward departure from the final sentencing guideline range

determined by the Court.” (R. Vol. I at 40.) The district court calculated a

guideline range of 188 to 235 months and imposed a sentence at the bottom of


      *
        This order is not binding precedent, except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
this range. Appellant then filed a direct appeal in this court, but we held that the

plea agreement was valid and enforceable, and we therefore dismissed the appeal.

See United States v. Noble, 175 F. App’x 185 (10th Cir. 2006).

      Appellant then filed a § 2255 habeas petition asserting various claims

relating to his sentence, the plea agreement, and the conduct of defense counsel

and the prosecuting attorney. The district court held that Appellant’s claims were

waived except as they related to the validity of his plea or the waiver of appellate

rights. See United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001).

As for Appellant’s claims that his attorney coerced him into signing the plea

agreement by indicating that he would receive a sixty-month sentence and failed

to properly investigate Appellant’s criminal record to discover that he would

likely receive an eight-level career criminal enhancement, the district court

concluded that Appellant had not satisfied the standard for showing ineffective

assistance of counsel. The court noted that there was no evidence of coercion and

that Appellant had proffered no reason why he did not inform his counsel about

his criminal history. When a defendant withholds the information required to

trigger an investigation into his criminal history, counsel’s failure to conduct an

independent investigation and the related failure to correctly calculate the

potential sentencing range do not constitute deficient representation. See United

States v. Rhodes, 913 F.2d 839, 843-46 (10th Cir. 1990). The district court also

concluded that Appellant had not demonstrated prejudice because he had not

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shown a reasonable probability that, but for counsel’s alleged errors, he would

have insisted on going to trial. If Appellant had gone to trial and been convicted,

he would have faced a guideline range of 262-327 months’ imprisonment, a

significant increase from the 188 month guideline sentence he actually received.

Moreover, Appellant pled guilty after being informed by the court that its final

calculation of his sentence might differ from any calculation made by his

attorney, and we found no prejudice in such circumstances in the unpublished

case of United States v. Gordon, 289 F. App’x 302, 304 (10th Cir. 2006).

      To obtain a certificate of appealability, Appellant must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, he must 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)

(internal quotation marks omitted).

      After carefully reviewing Petitioner’s filings in this court, the district

court’s disposition, and the record on appeal, we conclude that reasonable jurists

would not debate the district court’s dismissal of Petitioner’s claims. Therefore,

for substantially the reasons set forth in the district court’s thorough decision and

order, we DENY Petitioner’s request for a certificate of appealability and




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DISMISS the appeal. We GRANT his motion for leave to proceed in forma

pauperis.

                                         Entered for the Court



                                         Monroe G. McKay
                                         Circuit Judge




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