                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    May 6, 2009
                                   TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellant,                   No. 08-6257
          v.                                          (W.D. of Okla.)
 MICHAEL DUANE RABIEH,                        (D.C. No. 5:08-CV-00802-C and
                                                    5:07-CR-00058-C-2)
                 Defendant-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Michael Duane Rabieh is a federal prisoner serving a 151-month sentence

for distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1).

Rabieh pleaded guilty to the drug charge and entered into a plea agreement which,

among other things, waived his right to appeal or collaterally challenge his

conviction and sentence.




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Proceeding pro se, he now seeks a certificate of appealability (COA) to

challenge the district court’s denial of his motion to vacate, set aside, or correct

his sentence under 28 U.S.C. § 2255. 1 The district court determined Rabieh’s

waiver of his right to collaterally challenge his sentence was knowing and

voluntary, and denied all of his claims.

      We agree Rabieh is not entitled to relief under § 2255 and therefore DENY

his request for a COA.

                                   I. Background

      The more detailed facts of this case are set forth in our earlier opinion,

United States v. Rabieh, 259 F. App’x 143 (10th Cir. Dec. 20, 2007). We

therefore only briefly summarize the pertinent issues. After pleading guilty to

one count of distribution of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1), Rabieh entered into a plea agreement whereby he, among other

things, “knowingly and voluntarily waive[d] his right to” (1) “[a]ppeal or

collaterally challenge his guilty plea, sentence and restitution imposed, and any

other aspect of his conviction,” and (2) “[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,

provided the sentence is within or below the advisory guideline range determined


      1
        Because Rabieh proceeds pro se, we construe his pleadings liberally.
United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994).

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by the Court.” R., Vol. I, Doc. 33 at 5–6. The agreement further provided that

the “maximum penalty that could be imposed as a result of th[e] plea is 20 years

imprisonment” and that the sentencing court “ha[d] jurisdiction and authority to

impose any sentence within the statutory maximum.” Id. at 2, 5.

       Prior to sentencing, a presentence report (PSR) was prepared indicating that

Rabieh had two prior felony convictions that qualified as crimes of violence under

USSG § 4B1.1—thereby subjecting Rabieh to the career offender enhancement.

Based on this information, the PSR calculated his total offense level as 29, his

criminal history category as VI, and his advisory guideline range as 151 to 188

months’ imprisonment. The district court sentenced Rabieh to 151 months, the

bottom of the guideline range.

       Despite the plea agreement, Rabieh pursued a direct appeal, arguing his

waiver was not knowing and voluntary because he was not advised of the

potential for the career offender enhancement. We rejected his contentions,

enforced the plea agreement, and dismissed his claims. Rabieh, 259 F. App’x at

145.

       Rabieh then filed a § 2255 motion to vacate the sentence and conviction in

federal district court. In particular, he alleged ineffective assistance of counsel on

several bases: (1) counsel’s alleged failure to object to the district court’s

characterization of his prior felony convictions as crimes of violence; (2)

counsel’s alleged failure to inform him that he could be subject to the career

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offender enhancement; (3) counsel’s alleged representation that an agreement had

been reached for a prison term between 41 and 51 months; and (4) counsel’s

alleged procedural error in failing to object to the timing and disclosure of the

PSR.

       The district court denied the motion and Rabieh’s subsequent request for a

COA, finding his challenge was precluded by his knowing and voluntary waiver

of his right to collaterally attack his conviction and sentence. Specifically, the

district court concluded that none of Rabieh’s claims of ineffectiveness tainted his

waiver of appellate and collateral review.

       Rabieh now seeks a COA from this court on the same grounds.

                                   II. Discussion

       Before a district court’s denial of a motion for relief pursuant to § 2255

may be appealed, either the district court or this court must issue a COA. 28

U.S.C. § 2255(c)(1)(B). To obtain a COA, a petitioner must make a “substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). In order to satisfy this standard, the

petitioner must demonstrate that “reasonable jurists could debate whether . . . 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). Because




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Rabieh fails to demonstrate a denial of a constitutional right, we decline to grant

him a COA.

      As an initial matter, Rabieh raised substantially the same arguments

concerning the validity of his plea agreement and the career offender

enhancement in his direct appeal—arguments that we rejected in enforcing his

waiver of appellate rights. See Rabieh, 259 F. App’x at 144–45. We decline to

address these issues once again in this § 2255 challenge. United States v.

Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (“Absent an intervening change in

the law of [this] circuit, issues disposed of on direct appeal generally will not be

considered on a collateral attack by a motion pursuant to § 2255.”).

      Moreover, to the extent Rabieh’s ineffective assistance arguments may

implicate his waiver, Rabieh fails to demonstrate that reasonable jurists could

debate the validity of his waiver of collateral review of his conviction and

sentence. First, a waiver of collateral attack rights under § 2255 is enforceable

when “the waiver is expressly stated in the plea agreement and where both the

plea and the waiver were knowingly and voluntarily made.” United States v.

Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). To determine whether the

plea and waiver were knowing and voluntary, we look at (1) “whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily,” and (2) whether an adequate Federal Rule of




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Criminal Procedure 11 colloquy took place. United States v. Hahn, 359 F.3d

1315, 1325 (10th Cir. 2004) (en banc) (per curiam).

      Second, to prevail on an ineffective assistance of counsel claim, the

petitioner must show his attorney’s performance was deficient and that the

deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,

687 (1984). The petitioner has the burden of proof to overcome a strong

presumption that counsel provided effective assistance, United States v. Kennedy,

225 F.3d 1187, 1197 (10th Cir. 2000), and conclusory assertions are not

sufficient, United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). See also

United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002) (petitioner must

show—beyond mere allegations—that counsel’s deficient performance “affected

the outcome of the plea process and that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial” (citation and internal quotation marks omitted)).

      Rabieh fails to show any deficiency by his trial counsel, and his assertions

are, at best, conclusory. Despite Rabieh’s contentions otherwise, his counsel did

object to the classification of prior convictions as crimes of violence.

Additionally, the record does not disclose any misrepresentations by his counsel

regarding the potential prison term or possible career offender enhancements.

Instead, as the Rule 11 colloquy and plea agreement make clear, Rabieh was fully

informed of the factors the district court was to consider in calculating his offense

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level and resulting guideline range. Finally, Rabieh’s claim that his counsel was

ineffective because he did not object to the delay in the PSR’s preparation and

disclosure does not implicate the validity of his plea agreement and waiver. As a

result, Rabieh fails to satisfy his burden to demonstrate ineffective assistance of

counsel as it relates to the validity of his waiver of collateral attack.

      In sum, the language of the plea agreement, the Rule 11 colloquy, and

evidence relating to Rabieh’s communications with his counsel leave no room for

doubt that Rabieh entered into his plea agreement knowingly and voluntarily.

Therefore, having thoroughly reviewed the entire record, we agree with the

district court that Rabieh’s § 2255 motion is properly precluded by enforcement

of the plea agreement.

                                   III. Conclusion

      For the foregoing reasons, we find Rabieh has not made a substantial

showing of the denial of a constitutional right. We DENY his request for a COA

and DISMISS this appeal. We further DENY Rabieh’s motion to proceed in

forma pauperis.

                                         Entered for the Court

                                         Timothy M. Tymkovich
                                         Circuit Judge




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