                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 19, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                       No. 11-6047
       v.                                              (W.D. Oklahoma)
 RODNEY ANTONIO ALEXANDER,                    (D.C. Nos. 5:10-CV-00085-M and
                                                    5:08-CR-00109-M-1)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Rodney Antonio Alexander, appearing pro se, requests a

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

motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B)

(requiring COA to appeal dismissal of § 2255 motion). We deny his request for a

COA and dismiss this appeal.

I.    BACKGROUND

      On June 19, 2008, Defendant executed a plea agreement and pleaded guilty

in the United States District Court for the Western District of Oklahoma to

possession with intent to distribute methamphetamine, see 21 U.S.C. § 841(a)(1),

and to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). Under

the plea agreement he waived his right to challenge, by appeal or by collateral
attack, his plea or a sentence not exceeding the guideline range, except that he

could challenge the sufficiency of his prior convictions for purposes of the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). After being sentenced to 211

months’ imprisonment, Defendant appealed the district court’s enhancement of

his sentence under the ACCA, and we affirmed. See United States v. Alexander,

333 F.App’x. 388, *1 (10th Cir. 2009).

      On January 27, 2010, Defendant filed his § 2255 motion, contending that he

had received ineffective assistance of counsel because his attorney (1) failed to

explain adequately the mechanics of the plea agreement; (2) failed to challenge

the false statements of the witness/informant regarding drug quantities; (3) did

not obtain his input before making decisions; and (4) failed to challenge the

district court’s understanding of the standard operating procedure for prosecutors

regarding cooperation agreements under USSG § 5K1.1. In a later pleading

Defendant appears to expand his first claim by asserting that his counsel used

undue influence to get him to execute the plea agreement. The district court held

that the motion was barred by Defendant’s waiver of his right to collateral relief.

      In this court Defendant seeks to appeal the district court’s denial of his

§ 2255 motion. He does not pursue all the issues raised in district court but

argues that his plea was not knowing or voluntary because his attorney was

ineffective in three respects: (1) the attorney filled out the petition-to-enter-plea-

of-guilty form without adequately informing him of alternatives, (2) the attorney

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exerted undue influence, and (3) the attorney did not investigate untrue witness

statements.

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the [movant] has made

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

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the movant “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the § 2255 motion was denied on

procedural grounds, the movant faces a double hurdle. Not only must the movant

make a substantial showing of the denial of a constitutional right, but he must

also show “that jurists of reason would find it debatable . . . whether the district

court was correct in its procedural ruling.” Id.

      The most obvious hurdle for Defendant to overcome in pursuing relief

under § 2255 is the waiver in his plea agreement of his right to pursue a collateral

attack on his conviction or sentence. But even if the waiver is otherwise

enforceable, it “may not be used to . . . deny review of a claim that the agreement

was entered into with ineffective assistance of counsel.” United States v.

Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001) (internal quotation marks

omitted). Thus, some ineffectiveness claims can survive a waiver such as

Defendant’s.

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      Turning to Defendant’s first claim—that his counsel did not adequately

inform him of alternatives—we need not resolve whether it comes within the

Cockerham exception to his waiver of collateral-attack rights because it fails on

the merits. To establish a successful claim of ineffective assistance of counsel,

“the defendant must show that counsel’s performance was deficient” and “that the

deficient performance prejudiced the defense.” Strickland v. Washington, 466

U.S. 668, 687 (1984). The prejudice prong requires the defendant to “show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

      Defendant has failed to show prejudice arising from his counsel’s alleged

failure to advise him of alternatives. He does not identify any alternatives of

which he was not advised. And his plea colloquy shows that he made an

informed decision to plead guilty. After the government explained the maximum

punishment permitted by law, the district court asked Defendant: “[D]o you now

fully understand both the charges against you and the maximum punishment for

those charges?” R., Vol. 3 at 4. Defendant responded “Yes.” Similarly, the

court determined that Defendant knew that he could receive “the same punishment

as if [he] had pleaded not guilty, stood trial and been convicted,” id. at 6, and it

confirmed that no government agent had “promised or suggested or predicted . . .

that [he] would receive a lighter sentence . . . or . . . any other form of leniency in

exchange for a plea of guilty,” id. at 7–8. Also, the court advised him of his right

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to plead not guilty, to have a speedy and public trial by jury, to be represented by

counsel, to confront witnesses, to call witnesses on his own behalf, to compel the

production of evidence, and to refuse to testify. The government summarized the

relevant terms of the plea agreement and Defendant acknowledged that the

summary accurately represented the agreement. Of particular importance, the

court specifically asked Defendant about the waiver of his right to appeal, stating:

“Tell me in your own words what that means to you. I want to make sure that you

understand what you are giving up in that regard.” Id. at 10. Defendant

responded, “If I’m considered guilty, or whatever my punishment is, I can’t come

back and reinstate another hearing, or something like that.” Id. The court then

asked Defendant to explain in his own words what his waiver of collateral-attack

rights meant. Defendant responded: “That I can’t go through and pick out stuff

and say that y’all didn’t do this, kind of motion-it, to get a lower sentence, or

something like that.” Id.

      In short, the plea colloquy was the typical thorough exercise that ordinarily

rebuts postconviction claims of involuntariness. Whatever shortcomings there

may have been in defense counsel’s explanations to Defendant, the colloquy

unequivocally established that he was fully informed of the essentials of his plea

agreement.

      As for Defendant’s second-claim—his attorney’s alleged undue

influence—his assertion is conclusory and lacks supporting factual averments.

                                          -5-
Thus, we must assume that he is merely alleging that he was coerced by being

provided inadequate information, a claim that fails because he was fully informed

during the plea colloquy, before his plea was accepted.

      Defendant’s third claim—that his plea was unknowing and involuntary

because his attorney did not conduct an adequate investigation of a witness who

provided allegedly false information regarding the amount of drugs that could be

attributed to him for sentencing purposes—also fails because he has not alleged,

much less shown, prejudice. Defendant has not identified any information

favorable to him that he did not know before he pleaded guilty but that his

attorney would have discovered through a proper investigation. It appears that

Defendant’s real complaint is that his attorney did not use the information he

provided to challenge the witness’s veracity and accuracy. But any such failing

occurred post-plea and could not have affected Defendant’s decision to plead

guilty. Therefore, an ineffectiveness claim based on this alleged inadequacy

would not come within Cockerham’s exception to the binding force of

Defendant’s waiver of his right to attack his conviction or sentence in a § 2255

proceeding. See Cockerham, 237 F.3d at 1187 (court can enforce “a waiver of

§ 2255 rights expressly contained in a plea agreement when the collateral attack

does not challenge counsel’s representation in negotiating or entering the plea or

the waiver”).




                                         -6-
       No reasonable jurist could debate that Defendant’s § 2255 motion should

have been denied.

III.   CONCLUSION

       We DENY Defendant’s application for a COA and DISMISS the appeal.

We GRANT Defendant’s motion to proceed in forma pauperis.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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