                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS                  July 17, 2013
                               TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                       No. 13-6000
                                             (D.C. Nos. 5:10-CV-01205-F and
 v.                                                5:09-CR-00156-F-2)
                                                       (W.D. Okla.)
 RICHARD L. BISHOP,

             Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit
Judges.


      Richard L. Bishop, a federal prisoner, seeks a certificate of appealability

(COA) to appeal the district court’s denial of his motion under 28 U.S.C. § 2255

to vacate his guilty plea. Bishop was sentenced to 180 months’ imprisonment

after pleading guilty to one count of conspiracy to distribute methamphetamine

and one count of engaging in an illicit monetary transaction. Bishop filed the

§ 2255 motion challenging his guilty plea on the ground that his counsel had been




      *
         This order is not binding precedent except under the doctrines of law of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.
constitutionally ineffective, which the district court construed as a challenge to

the voluntary and knowing nature of Bishop’s plea.

      Given the deference owed to the district court’s factual findings, no

reasonable jurist could disagree with the court’s denial of Bishop’s § 2255

motion. Accordingly, we DENY the COA and DISMISS the appeal.

                                 I. Background

      Bishop worked at Allergy Labs in Oklahoma City, Oklahoma. Over the

course of several months, he stole from his employer over 200 pounds of

ephedrine for a friend, Adam Richard, who then sold it to various

methamphetamine “cooks.” Bishop received a total of $55,000 from Richard for

the ephedrine.

      Bishop was indicted with one count of conspiracy to distribute

methamphetamine and one count of engaging in an illicit monetary transaction for

using the theft proceeds to purchase a Mercedes Benz SUV. Bishop met with

federal prosecutors and agents for a proffer meeting, during which he admitted to

stealing the ephedrine, to knowing that the ephedrine was being used to produce

methamphetamine, and to purchasing his SUV with proceeds from the theft.

      Bishop decided to plead guilty. On Bishop’s Petition to Enter Plea of

Guilty, it lists a ten-year minimum sentence for the drug conspiracy count. The

petition also contains a factual summary of the offense written by Bishop: “I

agreed to provide and provided ephedrine to Adam Richard violating a federal

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drug law. This ephedrine was distributed by Adam Richard to others for the

production of methamphetamine.” R., Vol. I at 64. The petition bears Bishop’s

signature. A previously prepared presentence report (PSR) calculated Bishop’s

range according to the Sentencing Guidelines (USSG) as between 235 and 292

months.

      At Bishop’s plea hearing, Bishop answered yes to all the judge’s colloquy

questions, including whether: (1) a signature on the petition was Bishop’s; (2) a

signature on the plea agreement was Bishop’s; (3) Bishop understood that the

charges to which he was pleading guilty carried a ten-year minimum sentence; (4)

Bishop understood that he was waiving his right to appeal, unless the sentence

was above the guideline range; (5) Bishop had entered into an agreement to

supply Richard with ephedrine in order to produce methamphetamine; and (6)

Bishop had used at least $10,000 of the proceeds from the ephedrine sale to

purchase the SUV.

      At sentencing, held the same day as entry of the guilty plea, Bishop’s

counsel argued for the ten-year minimum, a significant downward departure from

the 235 months that was the bottom of the guideline range. The government

asked for a within-guidelines sentence. The court ultimately imposed a sentence

of 180 months. Of further note, Bishop was later charged with altering a letter of

support his brother had written for his sentencing hearing.




                                         -3-
      Six months later, Bishop filed a pro se motion under 28 U.S.C. § 2255 to

vacate his sentence on the ground his counsel had been constitutionally

ineffective. He raised six separate arguments for why his counsel had been

ineffective: (1) for failing to challenge the indictment as barred by the statute of

limitations; (2) for advising Bishop to plead guilty to a drug distribution

conspiracy when he only supplied a precursor chemical; (3) for failing to object to

the voluntariness of Bishop’s plea; (4) for advising Bishop to plead guilty to the

illicit monetary transaction count; (5) for failing to object to the two-level

sentencing enhancement Bishop received for being an organizer or leader in the

conspiracy; and (6) for failing to file an appeal as requested. In support of his

argument, Bishop reproduced what he claimed to be the contents of an email he

had sent to his counsel disputing the factual basis of his plea petition. In the

purported email, Bishop maintains he did not know the ephedrine would be used

to produce methamphetamine.

      The district court granted Bishop an evidentiary hearing and appointed him

new counsel. At the hearing, the court heard testimony from Bishop’s prior

counsel, Bishop’s father, Bishop’s two brothers, Bishop’s ex-wife, Bishop’s

mother, the ATF agent who investigated the case, and Bishop himself.

      Bishop’s prior counsel detailed the course of his representation. Counsel

testified that he never received the alleged email from Bishop that was included in

the § 2255 motion. He also testified that he never told Bishop that a sentence less

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than the mandatory minimum (ten years) was possible. The district court found

Bishop’s counsel’s testimony credible.

      Most of Bishop’s family members testified that they were under the

impression that Bishop would receive a few years’ imprisonment, and possibly

only probation. Bishop’s father testified that before sentencing Bishop’s counsel

had told him that the “worst case scenario would be probation.” R., Vol. II at 79.

The district court found that, given the implausibility of any attorney giving such

a prediction, Bishop’s counsel made no such statement. And, aside from the

father, none of the family members testified to hearing any statements concerning

Bishop’s likely sentence directly from his counsel; rather, the statements came

from Bishop himself. Consequently, the district court found that their

misinformation about Bishop’s likely sentence was merely part of Bishop’s

pattern of deceit and denial.

      Bishop testified that he was repeatedly misinformed by his counsel about

the sentence he faced, the factual basis of his plea, and the possibility of changing

his plea. The district court found nothing in Bishop’s testimony credible. The

court, citing Bishop’s responses at the plea colloquy, found that Bishop indeed

knew he faced a ten-year minimum sentence and knew the ephedrine would be

used to produce methamphetamine.

      The court made additional factual findings, including: (1) Bishop’s waiver

and plea were knowing and voluntary; (2) Bishop answered truthfully to questions

                                         -5-
regarding the factual basis of his plea; and (3) Bishop never instructed his counsel

to appeal his sentence. The court noted that because Bishop’s plea agreement had

a valid appeal waiver, the only possible basis for his § 2255 motion concerned the

knowing and voluntary nature of his plea or waiver. Yet, given the factual

findings it had already made, the court concluded Bishop could not show that

either his waiver or plea had been entered into unknowingly or involuntarily.

Accordingly, the district court denied Bishop’s § 2255 motion.

                                   II. Analysis

      To appeal the district court’s judgment, Bishop must first obtain a COA.

To obtain a COA, Bishop must make a “substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). And the assessment of

Bishop’s constitutional claims must be done while giving proper deference to the

district court’s factual findings, which, on a § 2255 motion, we review for clear

error. See United States v. Washington, 619 F.3d 1252, 1256 (10th Cir. 2010);

see also United States v. Raifsnider, 252 F. App’x 866, 868 (10th Cir. 2007)

(reviewing factual findings for clear error when deciding whether to issue COA).

We review the legal conclusions of a § 2255 motion de novo. Washington, 619

F.3d at 1256.



                                         -6-
      Bishop raises various arguments for why his counsel was constitutionally

ineffective, but because Bishop’s plea agreement contained a waiver of all

appellate rights, including the right to make collateral attacks, the only basis for a

§ 2255 motion is the validity of the plea or the appellate waiver itself. See United

States v. Viera, 674 F.3d 1214, 1217–18 (10th Cir. 2012).

      Guilty pleas and waivers are valid only if they were entered into knowingly

and voluntarily. See Bradshaw v. Stumpf, 545 U.S. 175, 182–83 (2005). With

respect to a guilty plea, the defendant must know the nature of the charges against

him as well as the likely consequences of his plea. Id. Notwithstanding a waiver

of appellate rights, claims of counsel’s ineffective assistance can be raised to the

extent they prove that a plea or waiver was not entered into knowingly and

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

      As an initial matter, Bishop provides no evidence contradicting the district

court’s finding that he knowingly and voluntarily waived his appellate rights. As

a result, we consider Bishop’s ineffective assistance arguments only insofar as

they cast into doubt the validity of his guilty plea. 1




      1
         Because of the appeal waiver, Bishop cannot now argue that counsel was
ineffective for failing to challenge the organizer/leader enhancement, which was
stipulated to in his plea agreement. And he presents no argument or evidence that
he was unaware of this stipulation such that it rendered his guilty plea unknowing
or involuntary. Nor does Bishop’s argument concerning counsel’s failure to file
an appeal cause us to doubt the validity of his plea.

                                           -7-
      The only two arguments Bishop raises that go to the nature of his

plea—counsel’s advice about the factual basis of his plea and counsel’s advice

about the likely sentence—conflict with the district court’s factual findings.

While Bishop contends he did not know the ephedrine was being used to produce

methamphetamine and that the money used to purchase his SUV did not come

from drug proceeds, the district court made explicit factual findings to the

contrary. Indeed, in his proffer meeting with the government, Bishop admitted to

using at least $10,000 of his proceeds from the ephedrine sales to purchase the

SUV. During the plea colloquy, Bishop answered affirmatively to all the court’s

questions concerning the factual basis of his plea and whether he understood that

he faced a ten-year minimum sentence. While Bishop claims his counsel

effectively told him to lie when answering these questions, the district court did

not find Bishop’s testimony on this issue credible. Absent clear evidence to the

contrary, we do not question a district court’s credibility determinations. See

United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003)

(reviewing credibility determinations for clear error). Here, Bishop presents no

such evidence.

      Accordingly, we have no reason to doubt the district court’s finding that

Bishop’s plea was knowing and voluntary.

                                III. Conclusion



                                         -8-
      Because no reasonable jurist, in light of the factual findings below, could

disagree with the district court’s resolution of Bishop’s challenge to the knowing

and voluntary nature of his guilty plea, we DENY the COA and DISMISS the

appeal.

                                                    ENTERED FOR THE COURT

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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