                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 9, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 09-3026
       v.                                                (D. Kansas)
 MARK BRADLEY KLINGENSMITH,                   D.C. Nos. 2:08-CV-02363-JWL and
                                                    2:05-CR-20063-JWL-1
              Defendant-Appellant.


                                     ORDER


    Before HENRY, Chief Judge, PORFILIO and BRORBY, Circuit Judges.



      Mark B. Klingensmith, appearing pro se, requests a certificate of

appealability (“COA”) to perfect his appeal from the district court’s order that

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

2255. Reviewing Mr. Klingensmith’s filings liberally, we conclude that Mr.

Klingensmith has failed to make a substantial showing of the denial of a

constitutional right. Accordingly, we DENY Mr. Klingensmith’s request for a

COA and DISMISS this matter.

                                        ***

      In April 2007, Mr. Klingensmith pleaded guilty to one count of conspiracy

to distribute and to possess with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii)(II) and 846 and 18 U.S.C. §

2. The plea contained a waiver of his right to appeal and collateral attack. At

sentencing, Mr. Klingensmith received a $15,000 fine and a ninety-two month

term of imprisonment. Subsequently, he moved the district court for § 2255

relief, alleging that:

       [H]e received ineffective assistance of counsel in connection with the
       negotiation of the plea agreement and his decision to plead guilty
       because his counsel neglected to advise him that the indictment should
       have been dismissed for violation of the Speedy Trial Act; because his
       counsel assured him that he would receive “the minimum sentence” by
       entering a plea of guilty[;] . . . because his counsel failed to object to
       Mr. Klingensmith’s classification in the Presentence Report as a career
       offender and failed to object to the court’s imposition of a fine.

Rec. vol. I, at 155-56 (Dist. Ct. Order, filed Jan. 15, 2009). In addition, Mr.

Klingensmith asserts that the $15,000 fine constitutes a violation of 18 U.S.C.

§ 3572, which requires sentencing courts to consider a defendant’s income,

earning capacity and financial resources when issuing a criminal fine. 1 The

district court denied Mr. Klingensmith’s motion on all grounds.              Mr.

Klingensmith now requests a COA from this court.

       Prior to filing an appeal, “a prisoner who was denied [§ 2255] relief in the

district court must first seek and obtain a COA . . . . This is a jurisdictional



       1
             Presumably because Mr. Klingensmith’s challenge of the $15,000
fine is without merit, the district court did not address it. We too decline to
address Mr. Klingensmith’s challenge to the fine because his plea contained a
waiver of the right to contest the fine.

                                           2
prerequisite . . . .” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); see Fed.

R. App. P. 22(b)(1). A COA may only be issued if Mr. Klingensmith makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make the requisite showing, Mr. Klingensmith must “show 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.”

Miller-El, 537 U.S. at 336 (alteration and internal quotation marks omitted);

United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). To determine

whether Mr. Klingensmith has satisfied his burden, we undertake a “preliminary,

though not definitive, consideration of the [legal] framework.” Miller-El, 537

U.S. at 338. Mr. Klingensmith need not demonstrate his appeal will succeed to be

entitled to a COA; however, he must “prove something more than the absence of

frivolity or the existence of mere good faith.” Id. (internal quotation marks

omitted).

      Mr. Klingensmith contends that reasonable jurists could debate the

correctness of the district court’s denial of his § 2255 motion; whether his pretrial

delay violated STA (“Speedy Trial Act”) and defense counsel was constitutionally

ineffective for failing to raise the issue; and whether counsel rendered

constitutionally ineffective assistance at sentencing. We need not resolve the

merits of these contentions, however, because he waived his right to appeal and

                                          3
collateral attack. In United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004)

(en banc) (per curiam), we held a waiver of appeal is enforceable so long as (1)

the disputed issue falls within the scope of the waiver of appellate rights; (2) the

defendant knowingly and voluntarily waived his appellate rights; and (3)

enforcing the waiver does not result in a miscarriage of justice. We conclude that

Mr. Klingensmith’s waiver satisfies all three conditions.

I.    Mr. Klingensmith waived his right to bring the instant 28 U.S.C.
      § 2255 action.

      Turning to the first prong, we conclude that this proceeding falls within the

scope of Mr. Klingensmith’s waiver. In his plea agreement, Mr. Klingensmith

agreed to a broad waiver of his “right to appeal or collaterally attack any matter

in connection with this prosecution, conviction, and sentence,” including his right

to § 2255 relief. Rec. vol. 1. at 157.

      The breadth of the waiver is not only clear from its language but also from

the colloquy before the district court. Before entering the plea, the district court

asked Mr. Klingensmith if he understood the broad scope of the waiver;

specifically, the district court clarified that Mr. Klingensmith had waived his right

to collaterally attack his sentence. Id. at 91-92. In response, Mr. Klingensmith

stated:

      Mr. Klingensmith: Yes, Judge. I understand what a 2255 is, and
      habeas corpus, and I give up those rights.

      The Court: Okay. And you’re willing to do that as part of this plea

                                           4
       agreement.

       Mr. Klingensmith. Yes, sir.

Id.

II.    Mr. Klingensmith’s plea was both knowing and voluntary.

       Turning to Hahn’s second prong–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 Criminal Procedure 11

colloquy took place. Hahn, 359 F.3d at 1325. The waiver’s language and the

court’s colloquy about its breadth make clear that Mr. Klingensmith understood,

before entering his plea, that he was waiving the right to bring this habeas action.

III.   Enforcement of the plea does not result in a “miscarriage of justice.”

       Under Hahn, notwithstanding the execution of a knowing and voluntary

waiver of a right that falls within the scope of the plea agreement waiver, the plea

agreement may nevertheless be invalidated if enforcement would render a

“miscarriage of justice.” These exceptions are found:

       [1] where the district court relied on an impermissible factor such as
       race, [2] where ineffective assistance of counsel in connection with
       the negotiation of the waiver renders the waiver invalid, [3] where
       the sentence exceeds the statutory maximum, or [4] where the waiver
       is otherwise unlawful.

Hahn, 359 F.3d at 1327. A waiver is “otherwise unlawful” if subject to an error

that “seriously affect[s] the fairness, integrity or public reputation of judicial

                                           5
proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

Mr. Klingensmith’s petition focuses on Hahn’s ineffective assistance of counsel

exception, specifically, that counsel failed to advise him that his indictment

should have been dismissed for violation of STA and assured him that he would

receive the minimum sentence by pleading guilty.

      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) (citation omitted), 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)).

      STA generally requires a trial to begin within seventy days of the filing of

an indictment or the defendant’s initial appearance, 18 U.S.C. § 3161(c)(1), but

provides a number of exceptions excluding specific periods of delay from being

counted toward the seventy-day time limit, see id. § 3161(h). Mr. Klingensmith

                                          6
claims that the seventy days within which STA required that he be brought to trial

elapsed between his initial appearance after arrest on July 11, 2005 and the

court’s acceptance of his April 10, 2007 plea agreement. A review of the record,

however, reveals that the delays in this case resulted from Mr. Klingensmith’s

requests for continuances for additional time to cooperate with the Government.

Rec. vol. I, at 161. As such, these delays are properly excluded under 18 U.S.C. §

161(h)(7)(A) (defining as excludable “[a]ny period of delay resulting from a

continuance granted by any judge at the request of the defendant or his counsel, if

the judge granted such continuance on the basis of his findings that the ends of

justice served by taking such action outweigh the best interest of the public and

the defendant in a speedy trial . . . .”). As the district court noted, “the record

contains no evidence that [Mr. Klingensmith] objected to his counsel’s requests

for continuances or asserted his speedy trial rights in any manner.” Rec. vol. 1, at

161. Mr. Klingensmith has thus failed to show that his counsel was

constitutionally ineffective.

      As to Mr. Klingensmith’s contention that counsel’s assurance of a

minimum sentence, the record does not disclose any misrepresentations by his

counsel regarding the potential prison term. To the contrary, the Rule 11

colloquy and plea agreement demonstrate that Mr. Klingensmith was aware that

he was entitled to no sentencing guarantee, and that his dissatisfaction with any

sentence did not provide any grounds for withdrawal of the plea or appeal. As a

                                            7
result, Mr. Klingensmith fails to satisfy his burden to demonstrate ineffective

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

                                          ***

      As outlined herein, we agree with the district court that Mr. Klingensmith’s

§ 2255 motion is properly precluded by the waiver in his plea agreement. No

reasonable jurist could debate the propriety of the district court’s ruling on this

issue. We accordingly DENY Mr. Klingensmith’s request for a COA and

DISMISS this matter.


                                                             Entered for the Court



                                                             Robert H. Henry
                                                             Chief Judge




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