                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 21 2003
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
 v.                                                      No. 02-6272
                                                   (D.C. Nos. 02-CV-805-A
 TOBY R. TRUSDALE,                                    and 99-CR-177-A)
                                                      (W.D. Oklahoma)
               Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY and BALDOCK Circuit Judges.



       After examining the brief and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       This is a pro se 28 U.S.C. § 2255 prisoner appeal. Mr. Trusdale pled guilty

to drug and firearm charges and was sentenced to twenty-five years of

imprisonment. His conviction was affirmed by this court on appeal. See United



       This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
States v. Trusdale, 2002 WL 258200 (10th Cir. 2002).

      In his § 2255 motion, Mr. Trusdale alleged that he received ineffective

assistance of counsel, that the evidence was insufficient to support his

convictions, that the sentencing guidelines were applied incorrectly, and that his

guilty plea was involuntarily entered. The district court denied the motion.

Finding no merit in any of Mr. Trusdale’s arguments, the district court declined to

grant him a certificate of appealability. Petitioner then applied to this court for a

certificate of appealability.

      In order for this court to grant a certificate of appealability, Petitioner must

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

2253(c)(2). To do so, Petitioner must demonstrate “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 quotations omitted).

      In his plea agreement, Mr. Trusdale waived his right to appeal or

collaterally challenge his guilty plea or his sentence. We have consistently upheld

such waiver provisions in plea agreements. See United States v. Elliott, 264 F.3d

1171 (10th Cir. 2001); United States v. Cockerham, 237 F.3d 1179 (10th Cir.

2001), cert. denied, 534 U.S. 1085 (2002). Mr. Trusdale has already challenged


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the validity of his waiver, and we have found it to be enforceable. See Trusdale,

2002 WL 258200, at *3.

      With respect to Mr. Trusdale’s allegations of ineffective assistance of

counsel, as the district court explains, Petitioner has failed to allege any facts

establishing deficient performance by trial counsel that affected Mr. Trusdale’s

decision to plead guilty. Therefore, all of Mr. Trusdale’s claims based on

ineffective assistance of counsel in connection with the guilty plea must fail.

      We have carefully reviewed the briefs, the district court’s disposition, and

the record on appeal. Nothing in the facts, the record on appeal, or the briefs

raises an issue which meets our standards for the grant of a certificate of

appealability. Therefore, for substantially the same reasons as set forth by the

district court in its Order of August 14, 2002, we cannot say “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner.” Id.

      We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis on appeal

is GRANTED.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge


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