                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALS October 9, 2013
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court


 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                     No. 13-3148
          v.                                             (D. of Kan.)
 LAMONT T. DRAYTON,                          (D.C. No. 2:12-CV-02568-KHV and
                                                   2:10-CR-20018-KHV-1)
                 Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Lamont T. Drayton, a federal prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to appeal from the district court’s denial of his

habeas corpus petition brought under 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1) (a petitioner may not appeal the denial of habeas relief under § 2255

unless a COA is issued). Because Drayton has failed to make “a substantial




      *
         This order is not binding precedent except under the doctrines of law of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.
      1
       We liberally construe Drayton’s pro se filings. See Ledbetter v. City of
Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and dismiss the appeal.

      A grand jury indicted Drayton on nine charges related to drug trafficking.

Among the charges were two counts of possession of a firearm in furtherance of a

drug trafficking crime in violation of 18 U.S.C. § 924(c) (Counts 3 and 7) and one

count of conspiracy to maintain a drug-involved premise within 1000 feet of a

public elementary school in violation of 21 U.S.C. § 846 (Count 4). Drayton

pleaded guilty to Counts 3 and 4. See Fed. R. Crim. P. 11(c)(1)(C). His plea

agreement proposed a sentence of 240 months in prison and five years of

supervised release, and the government agreed to dismiss the remaining counts.

According to the Presentence Investigation Report, Drayton would have been

subject to a total sentence of 447 to 468 months in prison if he had been convicted

of all counts.

      Drayton moved to withdraw his guilty plea on the grounds that his attorney

induced him to plead guilty through coercion and deception. He also filed a

motion for new counsel, and current counsel filed a motion to withdraw as

counsel. The court denied the motions. The court entered the recommended

sentence of 240 months in prison and five years of supervised release. Drayton

appealed his sentence. We dismissed his direct appeal based on his agreement to

waive his right to appeal.




                                        -2-
      Drayton then filed a pro se motion to vacate his sentence under 28 U.S.C.

§ 2255. He alleged ineffective assistance of counsel related to plea negotiations

and counsel’s failure to file certain motions to suppress. The district court

overruled his motion and denied him a COA. On appeal, Drayton reasserts his

ineffective assistance of counsel claim. He also raises claims that two police

searches violated the Fourth Amendment and that the court violated his Due

Process Clause rights by failing to give adequate notice of the withdrawal

hearing. Drayton, however, agreed to waive all collateral attacks except for

ineffective assistance of counsel and prosecutorial misconduct claims. Thus, he

may not raise Fourth Amendment and Due Process Clause claims in this appeal.

      To prevail on an ineffective assistance of counsel claim, Drayton must

show that his counsel’s conduct “fell below an objective standard of

reasonableness” and that such deficient performance resulted in prejudice to the

defense—that is, “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984).

      Drayton first contends that counsel’s coercive and deceptive behavior

caused him to accept a plea that was not “knowing and voluntary.” See United

States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005). For the same reasons

articulated by the district court, we find that counsel’s performance during plea

negotiations was not deficient or prejudicial. At the plea hearing, the court

                                         -3-
conducted a thorough inquiry and found that Drayton’s guilty plea was knowing

and voluntary. He affirmed that he understood the plea agreement, what the

consequences of a guilty plea might be, the rights he was waiving, and that the

plea agreement included his entire agreement with the government. He affirmed

that he had discussed the plea agreement with counsel, he was satisfied with

counsel’s representation and advice, he was not threatened or induced into

pleading guilty, and he was guilty as charged. The truth and accuracy of an

accused’s statements at a Rule 11 proceeding are regarded as conclusive “in the

absence of a believable reason justifying departure from their apparent truth.”

United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978). Drayton affirmed

under oath that he was not threatened or induced into pleading guilty, and the

evidence he has presented does not justify departure from our presumption that

this affirmation was true and accurate.

      Drayton further contends that counsel was ineffective for failure to file a

motion to suppress evidence derived from the placement of a GPS tracker on his

car. 2 The district court thoroughly addressed this claim. At the time of Drayton’s

arrest, three circuit courts, in reliance on United States v. Knotts, 460 U.S. 276

(1983), held that a warrant was not required for police officers to use a GPS


      2
        Drayton also alleges that counsel was ineffective for failing to file a
motion to suppress evidence derived from a dog-sniff search conducted without a
warrant. Because this issue is being raised for the first time on appeal, we decline
to address it. See United States v. Rantz, 862 F.2d 808, 811 (10th Cir. 1988).

                                          -4-
tracking device to follow a suspect’s movements for a reasonable time. After the

motions filing date, the D.C. Circuit rejected the reasoning of these circuit courts

and held that the police had to obtain a warrant to use a GPS tracker to monitor a

defendant for 28 days. See United States v. Maynard, 615 F.3d 544 (D.C. Cir.

2010). Considering the majority of circuit courts that addressed the issue held

that no warrant was required for a GPS device, counsel’s decision not to file a

motion to suppress was not “objectively unreasonable.” That the Supreme Court

ultimately reached the opposite conclusion in United States v. Jones, 132 S. Ct.

945 (2012), more than one year after Drayton’s plea, does not render counsel’s

performance “objectively unreasonable.” See Bullock v. Carver, 297 F.3d 1036,

1052 (10th Cir. 2002) (holding that failure to predict future law or to anticipate

arguments that blossomed after trial is not a basis for ineffective assistance of

counsel claims).

      Accordingly, we DENY Drayton’s application for a COA, DISMISS the

appeal, and GRANT leave to proceed in forma pauperis.

                                        ENTERED FOR THE COURT,

                                        Timothy M. Tymkovich
                                        Circuit Judge




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