                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                August 24, 2011
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 11-6080
 v.                                           (D.C. Nos. 5:10-CV-00874-F &
                                                   5:08-CR-00303-F-1)
 CAROLYN ANN BELL,                                   (W.D. Oklahoma)

             Defendant - Appellant.


         ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Carolyn Ann Bell filed a motion for relief under 28 U.S.C.

§ 2255 in the United States District Court for the Western District of Oklahoma.

The court denied the motion and denied Defendant’s request for a certificate of

appealability (COA). See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of § 2255 relief). Defendant seeks a COA from this court. We grant her

motion to proceed in forma pauperis but deny the application for a COA and

dismiss the appeal because she waived her right to pursue a collateral attack on

her conviction or sentence.

I.    BACKGROUND
      On December 2, 2008, Defendant was indicted for possessing 50 grams or

more of crack cocaine with intent to distribute. See 21 U.S.C. 841(a)(1),

(b)(1)(A)(iii) (2008). After reaching an agreement with the government, she

pleaded guilty. The plea agreement provided that she could not appeal or

collaterally challenge her guilty plea or sentence unless the district court imposed

a sentence greater than the range prescribed by the United States Sentencing

Guidelines (USSG) after it had determined that range. In return, the government

agreed that Defendant was entitled to a downward adjustment in sentence for

acceptance of responsibility and that it would not file an information under

21 U.S.C. § 851 to establish her past convictions (which could mandate a life

sentence).

      The presentence report (PSR) classified Defendant as a career offender

because of her two previous convictions for controlled-substance offenses. See

USSG § 4B1.1(a). Accordingly, her base offense level was 37, see id.

§ 4B1.1(b); 21 U.S.C. § 841(b)(1)(A), which was reduced three levels for her

acceptance of responsibility, see USSG § 3E1.1. Defendant’s adjusted offense

level of 34 and criminal-history category of VI resulted in a guideline sentencing

range of 262 to 327 months’ imprisonment. See id. § 4B1.1(b) (all career

offenders have a criminal-history category of VI); id. Ch. 5, pt. A.

      Defendant initially objected to the PSR, arguing that she was not a career

offender because her previous convictions were related. See id. § 4B1.2(c) (the

                                         -2-
two prior felony convictions establishing career-offender status must be

convictions that would be counted separately in criminal-history calculation). At

the sentencing hearing, however, Defendant’s attorney conceded that she was a

career offender. Defense counsel also acknowledged that the sentencing-

guidelines range was 262 to 327 months, but he argued that a sentence of 120

months would be sufficient. The district court disagreed and imposed a sentence

of 262 months’ imprisonment.

      After Defendant attempted pro se to seek review in this court of her

conviction, her attorney filed a notice of appeal. The government moved to

dismiss the appeal, arguing that Defendant had waived her right to appeal in the

plea agreement. In response to the motion, defense counsel admitted that the

appeal was within the scope of the waiver and could state no reason not to enforce

it. We dismissed the appeal. See United States v. Bell, 343 F. App’x 376, 377

(10th Cir. 2009) (unpublished).

      On August 11, 2010, Defendant filed a § 2255 motion pro se. She raised

four grounds for relief related to her sentence and one related to her direct appeal.

In response, the government argued that the motion should be dismissed both

because Defendant’s claims were meritless and because she had waived her right

to pursue a collateral attack on her conviction and sentence. Defendant’s reply

included additional claims challenging her guilty plea. The district court

determined that the collateral-attack waiver should be enforced and all claims

                                          -3-
relating to Defendant’s sentencing and appeal should be dismissed; in the

alternative, it determined that those claims failed on the merits. As for her claims

attacking the validity of the guilty plea and waiver, the court held (1) that the

claims were waived because they had not been made in Defendant’s initial § 2255

motion and (2) in the alternative, the claims failed on the merits.

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

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

§ 2253(c)(2). This standard requires “a demonstration that . . . includes showing

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). In other

words, an applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id.

      Liberally construing Defendant’s pro se application for a COA and

appellate brief, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), we discern 11

claims: (1) the waiver of her rights to pursue an appeal or collateral attack was

invalid because it was entered unknowingly and involuntarily and was the product

of ineffective assistance of counsel; (2) the district court’s chosen sentence was

motivated by racial bias; (3) her attorney was constitutionally ineffective for

                                          -4-
failing to investigate her status as a career offender before advising her to plead

guilty; (4) the government breached the plea agreement by arguing that she should

be sentenced as a career offender; (5) her attorney was ineffective when he

conceded that she was a career offender; (6) her attorney made prejudicial

statements against her during sentencing and thus became an advocate for the

government; (7) her attorney was ineffective for failing to present her cooperation

with the government as a reason to depart downward from the guideline

sentencing range; (8) classification as a career offender significantly

overrepresented her criminal history; (9) the disparity between powder-cocaine

and crack-cocaine sentences requires that she be resentenced; (10) she is

“‘actually innocent’” of being a career offender, COA Appl. at 33; and (11) her

attorney was constitutionally ineffective during her appeal.

      We first address the claims that relate to the validity of Defendant’s waiver

and guilty plea. Because the waiver and plea are valid, Defendant has waived all

other claims.

      A.     Claims Regarding the Waiver and Guilty Plea

      Defendant argues that the waiver in her plea agreement is invalid and that

her attorney was ineffective when advising her to plead guilty. She also argues




                                          -5-
that the government breached the plea agreement. We hold that the district

court’s resolution of these issues on the merits was not debatable or wrong. 1

             (1)   Validity of Waiver

      To determine whether Defendant’s right to bring her § 2255 motion has

been waived, we consider three requirements for enforceability of a waiver: “(1)

[that] the disputed [motion] falls within the scope of the waiver of [collateral-

attack] rights; (2) [that] the defendant knowingly and voluntarily waived h[er]

[collateral-attack] rights; and (3) [that] enforcing the waiver would [not] result in

a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (en banc) (per curiam); see United States v. Pinson, 584 F.3d 972, 975

(10th Cir. 2009) (applying Hahn analysis to collateral-attack proceeding). “In

determining a waiver’s scope, we will strictly construe appeal waivers and any

ambiguities in these agreements will be read against the Government.” Hahn, 359

F.3d at 1325 (brackets and internal quotation marks omitted).

      The waiver provision in Defendant’s plea agreement reads:

      Defendant also understands that the Court has jurisdiction and
      authority to impose any sentence within the statutory maximum for
      the offense(s) to which she is pleading guilty. Defendant further
      understands that Title 28, United States Code, Section 1291, and
      Title 18, United States Code, Section 3742, give her the right to
      appeal the judgment and sentence imposed by the Court.

      1
       Because Defendant’s arguments fail on the merits, we need not determine
whether the district court was correct to rule, in the alternative, that Defendant
had waived these arguments by failing to include them in her initial memorandum
in support of her § 2255 motion.

                                         -6-
      Acknowledging all this, defendant in exchange for the promises and
      concessions made by the United States in this plea agreement,
      knowingly and voluntarily waives her right to:
            a. Appeal or collaterally challenge her guilty plea, sentence
      and restitution imposed, and any other aspect of her conviction,
      including but not limited to any rulings on pretrial suppression
      motions or any other pretrial dispositions of motions and issues;
            b. Appeal, collaterally challenge, or move to modify under
      18 U.S.C. § 3582(c)(2) or some other ground, her sentence 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 by the Court to apply to this case. Defendant
      acknowledges that this waiver remains in full effect and is
      enforceable, even if the Court rejects one or more of the positions
      [on sentencing agreed to by the parties].

Plea Agreement at 5–6, United States v. Bell, No. 5:08-CR-00303-F (W.D. Okla.

Jan. 12, 2009), ECF. No. 22. Noting that the waiver provision does not

specifically mention § 2255 motions, Defendant relies on United States v. Pruitt,

32 F.3d 431 (9th Cir. 1994), to argue that “‘[a] plea agreement does not waive the

right to bring a § 2255 motion unless it does so expressly. The government gets

what it bargains for but nothing more.’” COA Appl. at 10, quoting Pruitt, 32 F.3d

at 433. Pruitt is readily distinguishable, however, because there the defendant’s

plea bargain included a waiver of appeal but not a waiver of the right of collateral

attack. See id. at 432. We have held that a waiver of the right to “appeal or

collaterally challenge” encompasses a § 2255 motion. Pinson, 584 F.3d at 974

(brackets and internal quotation marks omitted). Thus, Defendant’s § 2255

motion is within the scope of her waiver.

      Turning to the second requirement:

                                         -7-
      [T]o ascertain whether the defendant knowingly and voluntarily
      waived his appellate rights . . . we especially look to two factors.
      First, we examine whether the language of the plea agreement states
      that the defendant entered the agreement knowingly and voluntarily.
      Second, we look for an adequate Federal Rule of Criminal Procedure
      11 colloquy.

Hahn, 359 F.3d at 1325 (citation omitted). Defendant’s plea agreement states that

her waiver was entered “knowingly and voluntarily,” and that she “ha[d]

discussed [the plea agreement’s] terms with her attorney and understands and

accepts those terms.” Plea Agreement, supra, at 6, 11. During the plea colloquy

the district court thoroughly instructed Defendant that she was waiving her right

“to appeal or challenge in any other way” her guilty plea and sentence, as long as

the sentence was not greater than the sentencing-guidelines range, and she

indicated that she understood and accepted the waiver. Transcript of Plea

Proceedings at 11–12, Bell, No. 5:08-CR-00303-F (Jan. 12., 2009), ECF No. 70-1.

      Defendant has the burden to present evidence establishing that the waiver

was not knowing and voluntary. See United States v. Cudjoe, 634 F.3d 1163,

1166 (10th Cir. 2011). She asserts that she “would have never agreed to waive

her Appeal or Post Conviction rights to collaterally attack her sentence had she

been made aware of the fact that she would be sentenced as a Career Offender,”

COA Appl. at 13, and that her attorney told her both that the sentence would be

ten years, and that the government would not seek to enhance her sentence. She

also states that she understood that the government would file a motion under


                                        -8-
Fed. R. Crim. P. 35(b) or USSG § 5K1.1 to reduce her sentence for substantial

assistance. She argues that because she was mistaken about these facts, her plea

was not knowing and voluntary.

      But Defendant’s claims are contrary to her statements at the time of her

plea. She told the district court that she had received no promises or assurances

beyond what was in the plea agreement. See Tovar Mendoza v. Hatch, 620 F.3d

1261, 1269 (10th Cir. 2010) (“[S]olemn declarations in open court carry a strong

presumption of verity.” (internal quotation marks omitted)). Defendant’s

argument amounts to the contention that her waiver could not be valid unless she

knew exactly what sentence she would receive. But we have firmly rejected

Defendant’s position. See Hahn, 359 F.3d at 1327. Defendant’s waiver was

knowing and voluntary.

      Finally, we examine whether enforcement of “the waiver will result in a

miscarriage of justice.” Id. We have held that a miscarriage can occur in only

four situations: “[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.”

Id. (internal quotation marks omitted). Defendant raises only the first

two—racially motivated sentencing and ineffective assistance of counsel—as her

second and third claims on appeal.

                                         -9-
      Defendant’s claim that her race affected her sentence relies on the

following statement by her attorney at sentencing:

              Beyond that, recently we’ve had several cases come in from
      Lawton and it’s only recently that I’ve realized there is a major
      problem with controlled substances in the Lawton area, but not only
      is it controlled substances, but it’s gangs. And from talking with a
      client just recently, the number of gangs in Lawton is increasing.
      And I was quite honestly surprised by the amount of gang crime that
      is occurring there.
              Now, also from talking with clients that are coming from the
      Lawton area, having felony convictions is making it extremely
      difficult to find any kind of gainful employment. And as a result, a
      lot of young people have resorted to dealing in drugs.
              Putting [Defendant] away for 22 years is not going to solve the
      problem in Lawton, but letting people know through a sufficient
      sentence that the courts will not tolerate this crime may send the
      proper message to those individuals who continue to commit crimes.

Sentencing Hearing at 21–22, Bell, No. 5:08-CR-00303-F (May 21, 2009), ECF

No. 70-2. Defendant argues that the references to gang problems in Lawton were

racially motivated statements by her attorney (she asserts that those involved in

gangs and selling crack in Lawton are predominantly black). She then claims that

the district court responded to this allegedly racially charged comment when

imposing sentence, as shown by its statement that “[i]t is my intent to make an

example out of you,” Sentencing Hearing, supra, at 27. Defendant’s arguments

fail. The district court said that there is no support in the record for the

contention that defense counsel “invoked race” or that the court considered it, R.,

Vol. 1 at 25, and we agree.




                                          -10-
      We now turn to Defendant’s claim that her waiver was invalidated by

ineffective assistance of counsel. “[A] plea agreement waiver of postconviction

rights does not waive the right to bring a § 2255 petition based on ineffective

assistance of counsel claims challenging the validity of the plea or the waiver.”

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). To establish

that her counsel was ineffective, Defendant must show both “that counsel’s

representation fell below an objective standard of reasonableness” and that she

was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.

668, 687–88 (1984). “[A] court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of

an ineffective assistance of counsel claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Id. at 697.

      Defendant contends that her counsel was ineffective in advising her to

plead guilty before he had researched whether she could be sentenced as a career

offender. She states that when she pleaded guilty she therefore believed that her

sentence would be 10 years and that the government would move to reduce the

sentence further. But she has failed to show prejudice from her attorney’s alleged

deficiencies.

      For a defendant who has pleaded guilty to show prejudice, she must show

that she would not have entered her plea but for her attorney’s deficient

                                           -11-
performance. See Miller v. Champion, 262 F.3d 1066, 1075 (10th Cir. 2001). A

defendant’s “‘mere allegation’ that he would have insisted on trial but for his

counsel’s errors [is] necessary [but] ultimately insufficient to entitle him to

relief.” Id. at 1072. Here, Defendant has not even alleged that she would have

insisted on going to trial had she been aware that she might qualify as a career

offender. 2

       Further, the circumstances of the plea hardly suggest that Defendant would

have rejected the plea if better represented by her attorney. First, the plea

agreement protected her against an even harsher sentence. If the government had

not agreed to forgo filing an information under 21 U.S.C. § 851 naming her prior

felony drug convictions, she would have faced a mandatory life sentence. See

21 U.S.C. § 841(b)(1)(A). Second, the evidence against her was strong: a search

       2
         Insofar as Defendant argues that she would not have waived her right to
an appeal or a collateral challenge if her attorney had researched the career-
offender issue, she fails to show prejudice because she was clearly a “career
offender” under the guidelines. To be a career offender, Defendant needed to
have two separately counted felony convictions for controlled-substance offenses.
See USSG § 4B1.1(a). She does not contest that she had three prior felony
convictions for controlled-substance offenses. Her argument is solely that they
should not have been counted separately because she was never arrested for the
second and third offenses. But under the guidelines, it is dispositive that she was
arrested on the first offense before committing the other two; see id.
§ 4A1.2(a)(2), and she does not contest that she was arrested on the first offense
before committing the second. Thus, even if she had reserved the right to
challenge her being sentenced as a career offender, her challenge could not have
succeeded. And if her counsel had researched the issue (as she claims he did
not), the research would have informed her that the sentencing court had to
sentence her as a career offender, so she would have had no reason to reserve the
right to appeal on that issue.

                                         -12-
of her home had uncovered more than 200 grams of crack cocaine in her bedroom.

The district court characterized the evidence as “overwhelming.” R., Vol. 1 at 33;

see Miller, 262 F.3d at 1074–75 (strength of the evidence against defendant is a

factor when considering prejudice “in the context of a guilty plea”).

             (2)    Breach of Plea Agreement

      Defendant’s fourth claim on appeal is that the government breached her

plea agreement by arguing that she was a career offender under the guidelines. A

claim that the plea agreement has been breached is not barred by a waiver

provision in the agreement. See United States v. Trujillo, 537 F.3d 1195, 1200

(10th Cir. 2008).

      The plea agreement provided that Defendant would receive a downward

adjustment to her offense level for acceptance of responsibility but that “[a]part

from any expressed agreements and stipulations, the parties reserve the right to

advocate for, and present evidence relevant to, other guideline adjustments and

sentencing factors for consideration by the U.S. Probation Office and the Court.”

Plea Agreement, supra, at 4. Defendant argues that this provision did not

authorize the government to advocate sentencing her as a career offender. She

relies on United States v. Roberts, 624 F.3d 241 (5th Cir. 2010); but that case is

distinguishable. In Roberts the plea agreement stated that the base offense level

was 30. But career-offender status changed the defendant’s base offense level to

37. See id. at 243. The Fifth Circuit held that the plea agreement had been

                                        -13-
violated because the government argued for a different base offense level than the

one to which it had stipulated. See id. at 248. Here, in contrast, the plea

agreement does not set a base offense level.

       B.    Other Claims

       Defendant’s claims five through ten relate to purported errors in

sentencing. But because we have decided that Defendant validly waived her right

to pursue a collateral attack, no reasonable jurist could disagree with the district

court’s decision that these claims do not survive the waiver.

       Finally, Defendant argues that she received ineffective assistance of

counsel during her direct appeal because her attorney conceded the validity of her

waiver of the right to appeal. But because the waiver was valid, Defendant had

no right to appeal. Counsel’s performance was neither deficient nor prejudicial.

III.   CONCLUSION

       We GRANT Defendant’s motion to proceed in forma pauperis, DENY her

application for a COA, and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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