                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    October 12, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


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

                 Plaintiff-Appellee,                    No. 06-4063
          v.                                            (D. of Utah)
 K IRK IRVIN G K O SK ELLA ,                  (D.C. Nos. 04-CV-1186-DB and
                                                     00-CR-594-JTG)
                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Kirk Irving Koskella, a federal prisoner convicted in Utah, requests a

Certificate of Appealability (COA) following two district court denials of motions

to vacate his sentence under 28 U .S.C. § 2255. As Koskella makes his request

pro se, we construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610,

613 (10th Cir. 1998). W e will issue a CO A “only if the applicant has made a




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Finding no constitutional rights were denied M r. Koskella, we

reject his request for a COA and DISM ISS the appeal.

                                         I.

      Kirk Irving Koskella pled guilty to conspiring to defraud the Internal

Revenue Service and to wire fraud. United States v. Koskella, 118 F.App’x. 422

(10th Cir. 2004). Koskella received two five-year terms of incarceration to be

served consecutively and was ordered to pay $14,733,439.91 in restitution. In an

earlier appeal, we found the district court erred by delegating responsibility for

determining Koskella’s restitution payment schedule to the Bureau of Prisons and

the Probation Office. Id. at 423. Further, we noted that the district court failed to

order the restitution be shared jointly and severally with Koskella’s co-

conspirators, something to w hich the government, district court, and Koskella’s

counsel had agreed. Id. at 423–24. The government conceded both points and w e

remanded for the district court to issue a payment schedule as well as an order on

whether restitution should be joint and several. Id.

      At a January 21, 2005 hearing, the district court determined the restitution

payment should be joint and several and issued a preliminary payment schedule.

The payment schedule and the joint and several nature of the restitution were laid

down by court order on February 28, 2005. Subsequent to this order, Koskella




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made numerous motions pursuant to § 2255, which the district court denied in

separate orders dated September 2, 2005 and February 9, 2006.

                                          II.

      On this request for COA, he raises tw o issues: 1) that he was not properly

represented by counsel at the January 21, 2005 hearing, and 2) that his § 2255

motions were not given a proper hearing.

      A. Counsel Representation

      Koskella first contends that his counsel withdrew in April 2004 and had no

contact with Koskella for more than ten months before the January 21, 2005

hearing. He argues these facts demonstrate denial of proper representation at the

hearing. He also argues counsel refused to present motions regarding his § 2255

claims, leaving M r. Koskella to present the claims himself. He contends that

these transgressions amount to a constitutional violation.

      Koskella directs us to our unpublished decision in United States v. Barlow,

143 F.App’x. 965 (10th Cir. 2005). He appears to argue, based on Barlow, that

plain error by the district court in delegating the scheduling of restitution

payments requires remand for review of the sentencing decision itself. At critical

stages of such a sentencing remand, Koskella would have a right to counsel. See

United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). But in Barlow,

there was plain error in the actual sentencing decision as well as the district

court’s failing to set the restitution schedule. W e vacated Barlow’s sentence

                                          -3-
based on the plain error that occurred in the underlying sentencing decision, not

on the failure to set a restitution schedule.

      Koskella mistakes our finding of plain error with regard to the restitution

issue in his case for a finding of plain error with regard to the entirety of the

sentencing. W e did not reverse and remand the entire sentencing in Koskella as

we did in Barlow. W e only remanded for a determination of joint and several

liability and an order setting forth the restitution schedule. The court

implemented everything required by our decision with its February 28 order and

did so in Koskella’s favor. All of Koskella’s claims arising from our decision

were therefore vindicated. W ith no evidence of harm, we cannot identify a

constitutional foul arising from the January hearing that could be remedied

through grant of a COA.

      B. H earing on § 2255 C laims

      Koskella also claims the district court erred in denying his § 2255 motions

without hearing. But a prisoner is not entitled to a hearing if “the motion and the

files and records of the case conclusively show that the prisoner is entitled to no

relief.” 28 U.S.C. § 2255. As part of his plea bargain, Koskella w aived his

§ 2255 appeals.

      Under United States v. Hahn, we will uphold a waiver of appellate rights

when three conditions are met: 1) the disputed waiver falls within the scope of the

waiver of appellate rights, 2) the defendant knowingly and voluntarily waived the

                                           -4-
appellate rights, and 3) enforcing the waiver would not result in a miscarriage of

justice. 359 F.3d 1315, 1325 (10th Cir. 2004). Based on the record in this case,

namely the defendant’s statement in advance of his guilty plea as well as the

colloquy between the district court and Koskella at his December 12, 2000 plea

hearing, it is clear that the first two conditions are met. 1 None of the four

situations identified by the Hahn court as contributing to a miscarriage of justice

are present here either: 1) The district court did not rely on an impermissible

factor such as race, 2) there is no contention of ineffective assistance of counsel

regarding the waiver, 3) the sentence imposed on Koskella did not exceed the

statutory maximum, and 4) the waiver is not otherwise unlawful. Koskella’s plea

bargain was sufficient to waive his § 2255 appellate rights. His § 2255 motions

were therefore not entitled to a hearing.

      M r. Koskella has subsequently filed supplemental § 2255 claims arguing

that the federal government lacked jurisdiction, failed to establish a Commerce

Clause nexus to his crime, and that the entire Title 18 of the U.S. Code is

unconstitutional. Not only do these claims lack merit and/or relevancy, but as




      1
         W hile the district court comm itted error by not engaging in a colloquy
with the defendant specific to waiver of the appellate rights, we find that under
the analysis of United States v. Edgar, 348 F.3d 867, 872 (10th Cir. 2003), the
district court’s error did not affect Koskella’s substantial rights, so the waiver
stands. The plea agreement expressly states that Koskella w aives his right to
appeal of § 2255 relief.

                                            -5-
they all relate to a § 2255 habeas claim and we have found M r. Koskella has

waived such claims, he is denied COA on these claims. 2

      For the foregoing reasons, we DENY M r. Koskella’s request for COA, and

his motion for leave to file supplemental pleading, and DISM ISS the appeal.

                                                   Entered for the Court

                                                   Timothy M . Tymkovich
                                                   Circuit Judge




      2
        Given the adequacy of his waiver, we will not entertain any further § 2255
claims from M r. Koskella with regards to his charged offenses.

                                        -6-
