                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES CO URT O F APPEALS
                                                                 October 25, 2007
                                                  Elisabeth A. Shumaker
                            TENTH CIRCUIT             Clerk of Court




 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                        No. 07-3099
 v.                                                     (D . of Kan.)
                                                (D.C. No. 06-CV-3165-M LB)
 LARRY RAIFSNIDER,

              Defendant-Appellant.



           OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Larry Raifsnider seeks a certificate of appealability (COA) to appeal the

district court’s order denying his 28 U.S.C. § 2255 habeas petition to vacate,

modify, or set aside his sentence. Raifsnider challenges the district court’s

determination that (1) he knowingly and intelligently waived his right to appeal

his sentence, and (2) he was represented by constitutionally effective counsel.


      *
         This order is not binding precedent except under the doctrines of law of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.
W e agree with the district court that Raifsnider is not entitled to a COA and

DISM ISS this appeal.

                                  I. Background

      On April 4, 2005, Raifsnider pleaded guilty to kidnaping and possession of

a firearm during a crime of violence. His plea agreement contained the following

waiver of the right to appeal:

      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 otherwise attempt to modify or change his 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)] and a motion brought under Title 18, U.S.C.
      § 3582(c)(2). 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. However, if the United States
      exercises its right to appeal the sentence imposed as authorized by
      Title 18, U.S.C. § 3742(b), the defendant is released from this waiver
      and may appeal the sentence received as authorized by Title 18,
      U.S.C. § 3742(a).

R., Vol. I, Doc. 14 at 4–5. In a separate agreement that he signed on the same

day, he also pleaded guilty to bank fraud. This plea agreement contained an

identical waiver. Raifsnider filed a motion to withdraw his pleas on M ay 26,

2005, and subsequently withdrew the motion. The court sentenced Raifsnider on

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July 8, 2005, and imposed a 30-year sentence for kidnaping and possession of a

firearm during a crime of violence, and a concurrent 30 year sentence for bank

fraud.

         Raifsnider filed a pro se § 2255 habeas petition on June 16, 2006, alleging

the following: (1) ineffective assistance of counsel in the negotiation of his plea

agreement; (2) lack of jurisdiction by the district court that sentenced him; (3)

violation of Rules 3, 4, 5, 20, and 40 of the Federal Rules of Criminal Procedure;

and (4) illegal extradition from Oklahoma to Kansas. The court dismissed claims

2, 3, and 4, agreed to hold an evidentiary hearing on the ineffective assistance of

counsel claim, and appointed attorney Kari Schmidt to represent Raifsnider in that

hearing.

         After the evidentiary hearing was completed, the district court concluded

Raifsnider knowingly and intelligently waived all appellate rights except for

ineffective assistance of counsel. Because the court determined Raifsnider’s

attorney was constitutionally effective, the court denied him relief under § 2255.

                                     II. Discussion

         Provisions in plea agreements w aiving the right to appeal and collaterally

attack a conviction and sentence are enforceable if (1) the disputed issue falls

within the scope of the waiver, (2) the defendant knowingly and voluntarily

waived his rights, and (3) the waiver w ill not result in a miscarriage of justice.

See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per

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curiam). A miscarriage of justice occurs (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

otherw ise unlawful. Id. at 1327.

      On appeal, Raifsnider argues the district court erred in concluding that (1)

he knowingly and intelligently waived his rights, and (2) he received

constitutionally effective assistance in the negotiation of his plea agreements. W e

review the district court’s legal rulings de novo and its findings of fact for clear

error, United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001).

      A. Knowing and Intelligent W aiver

      The defendant bears the burden of demonstrating that his waiver was not

knowing and voluntary. United States v. Edgar, 348 F.3d 867, 872–73 (10th Cir.

2003). W hen evaluating the validity of a waiver, a court primarily considers

“‘whether the language of the plea agreement states that the defendant entered the

agreement knowingly and voluntarily’ and whether there was ‘an adequate

Federal Rule of Criminal Procedure 11 colloquy.’” United States v. Leon, 476

F.3d 829, 834 (10th Cir. 2007) (quoting Hahn, 359 F.3d at 1325).

      W e agree with the district court that the plea agreements clearly state that

Raifsnider “knowingly and voluntarily waives any right to appeal or collaterally

attack any matter in connection with this prosecution, conviction and sentence.”

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R., Vol. I, Doc. 14 at 4; R., Vol. I, Doc. 38, Ex. A. Furthermore, the court

conducted the required plea colloquy, and the defendant testified under oath that

he understood the consequences of the plea agreement, did not have any mental

problems, had sufficient time to discuss his case with his counsel, and was

satisfied with his counsel’s representation. In a subsequent hearing on the

withdrawal of his motion to withdraw his plea, he again testified under oath that

he understood the consequences of the waiver. See Blackledge v. Allison, 431

U.S. 63, 74 (1977) (“Solemn declarations in open court [affirming a plea

agreement] carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary dismissal,

as are contentions that in the face of the record are wholly incredible.”).

      Raifsnider nonetheless argues that he lacked the mental capacity to make a

know ing and intelligent waiver. He claims statements he made to the FBI suggest

that he is incompetent. After Raifsnider was arrested on November 29, 2004, he

told FBI agents that he:

      1.     made 20,000–25,000 fictitious identifications;
      2.     designed various toxins and explosives;
      3.     took guerilla w arfare training in M exico;
      4.     created a formula that could be brought on airplanes
             undetected;
      5.     murdered for hire seven or eight people in M exico and Canada;
      6.     was hired by the IRA to kill someone in Canada with a poison
             blow dart with poison from a Brazilian frog;
      7.     was hired by and worked for John Gotti and other Italian
             organized crime ring leaders;



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      8.     supplied foreign governments w ith documents relating to
             American military bases;
      9.     had information that Iran wanted to take out various consumer
             markets in the United States, such as W alM art;
      10.    trained with a Colombian armed forces group
      11.    met with Al-Qaeda operatives in M exico.

Presentence Report (“PSR”), Aplt. App. 16–19. According to the PSR,

“authorities w ere never able to verify information regarding the defendant’s

reported murders or connections to foreign government.” Id. at 19, ¶ 87. W hile

these statements suggest Raifsnider has a colorful imagination, the PSR by itself

fails to establish that Raifsnider was incompetent at the time of the April 4, 2005,

plea hearing.

      In a memorandum submitted to the court prior to the § 2255 evidentiary

hearing, Raifsnider also made the following assertion: “[m]y attorney did not

inform the court nor investigate the head trauma I suffered years back and refused

to have me evaluated for compitency [sic] that I have nearological [sic] damage

and that my actions stemed [sic] from this head trauma.” M emorandum of Law in

Support of 28 U.S.C. § 2255 M otion, R., Vol. 1, Doc. 38 at 11. At the evidentiary

hearing, Raifsnider and his attorney failed to produce medical testimony or any

other evidence substantiating this claim.

      The United States rebutted Raifsnider’s claim of incompetency by

submitting an affidavit from Raifsnider’s trial attorney, Assistant Federal Public

Defender Steven Gradert. He states,



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      Raifsnider claims that Affiant did not address the issues related to his
      claim that he had suffered a head trauma that might have affected his
      mental capacity. Affiant submits that these issues were not raised
      with the Court. Affiant did discuss the possibility of seeking a
      psychological evaluation with the defendant based on both the
      history of the defendant and the Affiant’s own observations about the
      behavior of the defendant during the representation. The defendant
      requested that he be evaluated but changed his mind and did not want
      to be sent away.

      Affiant was convinced that Raifsnider understood his charges as he did his
      own research regarding many issues and was clearly able to assist with his
      defense. Affiant was satisfied that Raifsnider knew and understood the
      terms of his plea agreements and the sentence he was to receive.

A ff. of Steven G radert, R ., V ol. I, Doc. 46 at 5–6, ¶ 9. Based on this record, w e

conclude Raifsnider did not produce sufficient evidence establishing that he

lacked the capacity to knowingly and voluntarily agree to waive his right to

appeal his sentence.

      B. Ineffective Assistance of Counsel

      “[C]ounsel is strongly presumed to have rendered adequate assistance.”

Strickland v. W ashington, 466 U.S. 668, 690 (1984). W hen a defendant

challenges a guilty plea based on ineffective assistance of counsel, the defendant

must first show that “counsel’s performance was deficient.” Id. at 687. In order

to prove deficient performance, the defendant must identify acts or omissions that

are “outside the wide range of professionally competent assistance.” Id. at 690.

Second, a defendant must establish prejudice. Id. A defendant demonstrates

prejudice by showing that the attorney’s ineffective performance “affected the



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outcome of the plea process. In other words . . . 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.” M iller v. Champion, 262 F.3d 1066, 1072

(10th Cir. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985) (emphasis

added)).

      Raifsnider argues G radert’s performance was deficient because he failed to

request an evaluation of Raifsnider’s competency. In support of this proposition,

he quotes an article describing Rule 1.14 of the Kansas Rules of Professional

Conduct. According to the article, “the law yer may make necessary disclosures to

protect the client, even when the client directs the lawyer not to disclose, and

suggests that before making disclosures, a lawyer should consider whether a

person is likely to use the information to act adversely to the client’s interests.”

Aplt. Br. 8 (quoting Sheila Reynolds, Revised Rule for Representing Clients with

Diminished Capacity, J. Kan. B. Ass’n, July–Aug. 2007, at 24, 25). The rule the

author w as describing, however, did not become effective until July 1, 2007, id. at

24, and therefore did not govern Gradert’s conduct.

      The prior version of Rule 1.14 indicates that an attorney is not required to

seek an evaluation of a client’s competency if he does not believe it is in the

client’s best interest. The comment to the rule explains, “disclosure of the

client’s disability can adversely affect the client’s interest. For example, raising

the question of disability could, in some circumstances, lead to proceedings for


                                          -8-
involuntary commitment. The law yer’s position in such cases is an unavoidably

difficult one. The lawyer may seek guidance from an appropriate diagnostician.”

Kan. Rule Prof’l Conduct R. 1.14 cmt. (2006) (emphasis added). The rule does

not indicate that the attorney must seek guidance from a medical expert.

      As noted above, Gradert stated he discussed with Raifsnider the possibility

of obtaining a psychological evaluation. “The defendant requested he be

evaluated but changed his mind and did not want to be sent away.” Aff. of Steven

Gradert, R. Vol. I, Doc. 46 at 5, ¶ 9. Gradert also concluded it was unnecessary

to raise the issue before the court because he was “convinced that Raifsnider

understood his charges as he did his own research regarding many issues and was

clearly able to assist with his defense. Affiant was satisfied that Raifsnider knew

and understood the terms of his plea agreements and the sentence he was to

receive.” Id. at 6, ¶ 9. The district court also held an evidentiary hearing

regarding Raifsnider’s ineffective assistance of counsel claim. Gradert testified at

the hearing, and Raifsnider’s attorney had ample opportunity to cross examine

him. The district court concluded that Raifsnider “was ably represented

throughout this case by qualified, competent counsel. There is no evidence that

M r. Gradert’s performance was deficient in any manner.” R., Vol. I, Doc. 59 at

21.

      Because Gradert’s representation was within the “wide range of

professionally competent assistance,” Strickland, 466 U.S. at 690, we agree that


                                          -9-
Raifsnider failed to assert a colorable claim of ineffective assistance of counsel

that w ould vitiate the plea agreement.

                                  III. Conclusion

      Accordingly, we DEN Y Raifsnider’s application for a CO A and DISM ISS

this appeal.

                                          Entered for the Court,

                                          Timothy M . Tymkovich
                                          Circuit Judge




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