                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                    TENTH CIRCUIT                                April 16, 2014

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                               No. 14-6005
                                                     (D.C. Nos. 5:13-CV-01251-R and
v.
                                                           5:10-CR-00096-R-1)
                                                               (W.D. Okla.)
WILLIAM KEVIN KNITTEL,

       Defendant – Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, MCKAY, and MATHESON, Circuit Judges.



       Petitioner William K. Knittel, a federal prisoner appearing pro se,1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. See 28 U.S.C.




       * This order is not binding precedent, except under the doctrines of law of the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 therefore construe Mr. Knittel’s filings liberally. See Erickson v. Pardus,
551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops, however, at the point at
which we begin to serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009).
§ 2253(c)(1)(B) (requiring a COA to appeal an order denying a § 2255 petition). Mr.

Knittel also requests leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction

under 28 U.S.C. § 1291, we deny both requests and dismiss this matter.

                                    I. BACKGROUND

                                  A. Factual Background

       On October 30, 2008, a Texas state court issued an arrest warrant for Mr. Knittel

on a charge of first-degree murder. See United States v. Knittel, 462 F. App’x 844, 845

(10th Cir. 2012) (unpublished). A Texas sheriff’s department issued an all-points-

bulletin (“APB”) to law enforcement offices across the country for Mr. Knittel’s arrest,

noting that Mr. Knittel was believed to be en route to Oklahoma. Id. at 845-86.

       On November 9, 2008, an Oklahoma police officer recognized Mr. Knittel’s car

based on information provided in the APB and pulled him over. Id. at 846. Mr. Knittel,

who had previously been convicted of a felony, admitted to the officer he had a gun in his

car. After arresting Mr. Knittel, the officer found the gun loaded with six rounds of

ammunition inside the car. Id.

                                 B. Procedural Background

1. Plea and Sentencing

       On March 16, 2010, a federal grand jury in Oklahoma indicted Mr. Knittel on one

count of felony possession of a firearm and ammunition in violation of 18 U.S.C. §

922(g).




                                           -2-
       Court-appointed counsel represented Mr. Knittel through pre-trial proceedings,

though Mr. Knittel repeatedly complained about his representation. See Knittel, 462 F.

App’x at 846. “At one point, the district court allowed [Mr. Knittel] to proceed pro se,

with appointed counsel acting as standby.” Id.

       Acting pro se, Mr. Knittel entered a conditional guilty plea, reserving the right to

appeal (1) the district court’s denial of his motion to suppress; (2) the district court’s

exercise of subject matter jurisdiction; and (3) the issue of whether he received effective

assistance of counsel. See id. at 845.

       Mr. Knittel appeared pro se at a sentencing hearing on March 28, 2011. After the

hearing, Mr. Knittel was sentenced to 96 months in prison.

2. Direct Criminal Appeal

       On appeal, Mr. Knittel’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), explaining why he believed there were no colorable grounds for an

appeal and requesting leave to withdraw as counsel.

       This court agreed that Mr. Knittel had failed to raise a meritorious issue and

dismissed Mr. Knittel’s appeal. See Knittel, 462 F. App’x at 847. Among other

arguments, we rejected Mr. Knittel’s contention that the district court erred in denying

him a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 171 (1978), to challenge

alleged falsehoods in the affidavit supporting the Texas warrant that led to his arrest. See

id.




                                             -3-
3. Federal Habeas Proceeding

       After his unsuccessful appeal, Mr. Knittel filed a 28 U.S.C. § 2255 motion to

vacate his sentence. In his § 2255 motion, Mr. Knittel raised four grounds for relief. Mr.

Knittel argued the trial court (1) improperly denied him counsel at the critical stage of

sentencing; (2) improperly interjected itself in plea bargaining and misled him as to

whether it would grant a reduction under the Sentencing Guidelines for acceptance of

responsibility; and (3) erred in denying him a Franks hearing. In addition, Mr. Knittel

argued (4) his trial counsel was ineffective because he failed to (a) investigate facts

related to the Texas murder case, (b) give Mr. Knittel correct information about the

Sentencing Guidelines, and (c) share with Mr. Knittel a psychological evaluation that

figured into sentencing. See United States v. Knittel, No. 5:13-CV-01251-R, at *1-2

(W.D. Okla. Dec. 20, 2013), ECF No. 2 [hereinafter Dist. Ct. Order].

       The district court held that three of Mr. Knittel’s claims—denial of counsel,

improper plea bargaining, and ineffective assistance—failed on the merits. The district

court also held that Mr. Knittel’s Franks hearing claim was procedurally barred because

it had already been decided on direct review.

       Mr. Knittel filed a timely request for COA.

                                     II. DISCUSSION

       Mr. Knittel may not appeal the district court’s denial of his § 2255 motion without

a COA. To obtain a COA, Mr. Knittel must make “a substantial showing of the denial of




                                            -4-
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473,

483-84 (2000). To make this showing, Mr. Knittel must demonstrate “that reasonable

jurists could debate whether . . . the petition should have been resolved in a different

manner or that issues presented were adequate to deserve encouragement to proceed

further.” Slack, 529 U.S. at 484 (quotations omitted).

        Because the district court rejected Mr. Knittel’s Franks claim on procedural

grounds, Mr. Knittel must demonstrate with respect to that claim “both that ‘jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.’” Clark v. Oklahoma, 468 F.3d 711, 713 (10th

Cir. 2006) (quoting Slack, 529 U.S. at 484).

        In his application for COA, Mr. Knittel reasserts the same four claims that he

presented in his § 2255 petition at the district court.2 We address each of these claims in

turn.




        2
         Mr. Knittel also argues that the district court “demonstrated a clear prejudice
against” him by “failing to file” motions Mr. Knittel had submitted. Pet. Br. at 2. Mr.
Knittel appears not to have raised this issue in his § 2255 petition before the district court,
and the district court order denying his petition does not address this issue. Therefore, we
do not address it on appeal. See Stouffer v. Trammell, 738 F.3d 1205, 1222 n.13 (10th
Cir. 2013).


                                             -5-
                           A. Denial of Counsel at Sentencing

       First, Mr. Knittel contends the trial court improperly denied him counsel at the

critical stage of sentencing. Specifically, Mr. Knittel argues that because his court-

appointed counsel was ineffective, the trial court should have “substituted” counsel for

him. Pet. Br. at 2. He also argues the trial court should have inquired under Faretta v.

California, 422 U.S. 806 (1975), as to whether his waiver of counsel at the sentencing

stage was knowing and intelligent.

       In its order denying Mr. Knittel’s § 2255 petition, the district court decided that

Mr. Knittel “was not denied assistance of counsel at his sentencing. Rather, he

repeatedly refused the assistance of counsel, despite being warned of the potential

consequences.” Dist. Ct. Order at 2. The district court pointed to several instances in

which the trial court cautioned Mr. Knittel against proceeding pro se, but Mr. Knittel

insisted he was “done with” his counsel and did not “want him anywhere around” him.

Id.

       The Sixth Amendment right to counsel may only be waived “knowingly and

intelligently.” Faretta, 422 U.S. at 835 (quotations omitted). However, “a defendant

need not himself have the skill and experience of a lawyer in order competently and

intelligently to choose self-representation.” Id. Instead, the defendant must “be made

aware of the dangers and disadvantages of self-representation” and nonetheless

affirmatively choose to proceed pro se. Id.




                                            -6-
         In this instance, the trial court repeatedly warned Mr. Knittel of these dangers, and

Mr. Knittel refused to work with his court-appointed counsel. Crucially, the court again

cautioned Mr. Knittel at sentencing, saying “I’ve urged you many times to consult

[counsel],” and again asked whether Mr. Knittel wanted to proceed pro se. Dist. Ct.

Order at 2. Mr. Knittel responded: “I don’t want [counsel] anywhere around me.” Id.

The record thus belies Mr. Knittel’s assertion that the court should have conducted an

additional Faretta inquiry at sentencing.

         Mr. Knittel’s argument that the trial court should have substituted counsel for him

is also unavailing. “[T]he right to assistance of counsel does not imply the absolute right

to counsel of one’s choice.” United States v. Weninger, 624 F.2d 163, 166 (10th Cir.

1980).

         Reasonable jurists would not debate the district court’s conclusion that, in these

circumstances, the trial court did not deny Mr. Knittel his right to counsel. Accordingly,

we deny COA on this claim.

                                B. Improper Plea Bargaining

         Mr. Knittel next contends the trial court misled him at his plea hearing as to

whether it would grant a reduction under the United States Sentencing Guidelines (the

“Sentencing Guidelines” or “Guidelines”) for acceptance of responsibility. According to

Mr. Knittel, the trial court led him to believe it would apply a three-point reduction,

though it ultimately applied a two-point adjustment instead. See Pet. Br. at 2. Mr.




                                              -7-
Knittel now argues that this misinformation constituted improper plea bargaining, as he

pled guilty while assuming that he would receive a three-point reduction.3

       As the district court’s order denying Mr. Knittel’s habeas petition explains, the

trial court specifically told Mr. Knittel that any potential acceptance-of-responsibility

reduction was not guaranteed. When Mr. Knittel asked at the plea hearing if he would

receive the reduction, the court responded:

       That would be up to me to decide, and . . . whether or not the government
       objects to it, if I decide it, it’s in my discretion. I would have to wait until
       the presentence report, and I can’t tell you that in advance. I will just have
       to wait and see . . . if I’m satisfied you’ve accepted responsibility for your
       acts.

Dist. Ct. Order at 3. Furthermore, this court has previously stated that “the record does

not support [Mr. Knittel’s] contention that the district court promised a three-point

reduction.” Knittel, 462 F. App’x at 848.

       In these circumstances, reasonable jurists could not debate the district court’s

conclusion that “nothing in the record supports [Mr. Knittel’s] claim that anything the

Court said was a deciding factor in his decision to enter into a plea bargain.” Dist. Ct.


       3
         Mr. Knittel argued in his direct appeal that the trial court had promised him a
three-point reduction for acceptance of responsibility, and we rejected this argument. See
Knittel, 462 F. App’x at 848. It appears, however, that Mr. Knittel’s argument on direct
appeal constituted a challenge to his sentence, whereas he now alleges the trial court
improperly engaged in plea bargaining by misleading him as to the extent of the
acceptance-of-responsibility reduction he would receive. Construing Mr. Knittel’s
pleadings liberally, as we must, we conclude he is not procedurally barred from raising
his current objection to the trial court’s handling of the acceptance-of-responsibility
adjustment.


                                              -8-
Order at 3 (quotations omitted). The record indicates the trial court properly alerted Mr.

Knittel that he may or may not receive an acceptance-of-responsibility reduction. We

therefore deny COA on this claim.




                                    C. Franks Hearing

       Next, Mr. Knittel argues the trial court erred by refusing to conduct a hearing

under Franks v. Delaware, 438 U.S. 154 (1978), to challenge alleged falsehoods in the

Texas arrest warrant affidavit that led to his apprehension. A defendant is entitled to a

Franks hearing if he “makes a substantial showing that the affidavit contains intentional

or reckless false statements and if the affidavit, purged of its falsities, would not be

sufficient to support a finding of probable cause.” United States v. Kennedy, 131 F.3d

1371, 1376 (10th Cir. 1997).

       As the district court noted in its order denying Mr. Knittel’s § 2255 petition, Mr.

Knittel raised his Franks hearing claim on direct appeal, and we decided then that Mr.

Knittel “did not merit a Franks hearing” because he failed to make a substantial showing

that the arrest affidavit was false. Knittel, 462 F. App’x at 847-48.

       The district court correctly held that because this claim was raised and decided on

direct appeal, Mr. Knittel is procedurally barred from raising it in his habeas petition. See

Abernathy v. Wandes, 713 F.3d 538, 549-50 (10th Cir. 2013).




                                             -9-
       Mr. Knittel has failed to persuade us that “jurists of reason would find it debatable

whether the district court was correct in [this] procedural ruling.” Clark, 468 F.3d at 713

(quotations omitted). We therefore deny COA on this claim.




                          D. Ineffective Assistance of Counsel

       Finally, Mr. Knittel argues his counsel was ineffective because he (1) failed to

investigate facts related to the Texas murder case and (2) misinformed Mr. Knittel about

the Sentencing Guidelines.4

       To establish a Sixth Amendment violation for ineffective assistance of counsel, a

petitioner must establish that (1) counsel’s performance fell below an objective standard

of reasonableness and (2) counsel’s deficient performance resulted in prejudice to his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at

689. A petitioner must overcome a strong presumption that counsel’s representation was

reasonable with evidence that counsel made errors so serious as to violate the defendant’s



       4
         Mr. Knittel’s § 2255 petition before the district court also included a claim that
his counsel failed to give him a report of a psychological examination that was relevant to
sentencing. Mr. Knittel has not raised this additional ineffective assistance claim on
appeal, and therefore we do not address it here.


                                           - 10 -
Sixth Amendment right to counsel. See Harrington v. Richter, 131 S. Ct. 770, 787

(2011).

       As to prejudice, a petitioner must establish “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not

just conceivable.” Richter, 131 S. Ct. at 792 (citing Strickland, 466 U.S. at 693).

       If a petitioner is unable to show either “deficient performance” or “sufficient

prejudice,” the ineffective assistance claim “necessarily fails.” Hooks v. Workman, 606

F.3d 715, 724 (10th Cir. 2010) (quotations omitted).

1. Failure to Investigate Texas Murder Case

       Mr. Knittel contends his counsel was deficient because he failed to investigate

facts surrounding the murder investigation in Texas that ultimately led to Mr. Knittel’s

arrest. Mr. Knittel appears to argue that the affidavit supporting the Texas arrest warrant

was falsified based on information from a confidential informant. He contends his

counsel should have investigated this issue and filed pre-trial motions on Fourth

Amendment grounds, ostensibly to obtain a Franks hearing.

       We agree with the district court that even if Mr. Knittel’s counsel’s performance

was deficient, Mr. Knittel has not demonstrated that he was prejudiced by his counsel’s

failure to investigate the facts surrounding the murder investigation in Texas. As the

district court noted, the facts of the Texas murder case were irrelevant to Mr. Knittel’s



                                           - 11 -
federal prosecution for being a felon in possession of a firearm and ammunition. See

Dist. Ct. Order at 4. In addition, Mr. Knittel fails to show either (1) that he would have

been granted a Franks hearing if his counsel had inquired into the Texas murder

investigation or (2) that he would have been successful in a Franks hearing in any case.

         In these circumstances, reasonable jurists could not debate the district court’s

conclusion that Mr. Knittel “has wholly failed to show that the result would have been

different” but for his counsel’s errors, Dist. Ct. Order at 4, as he is required to do to

establish prejudice under Strickland, 466 U.S. at 694. We therefore deny COA on this

issue.

2. Misinformation about Sentencing Guidelines

         Mr. Knittel also argues that his counsel was deficient because he inaccurately

predicted Mr. Knittel’s criminal history calculation under the Sentencing Guidelines.5

We agree with the district court that Mr. Knittel has failed to demonstrate either (1)

deficient performance or (2) prejudice on this issue.

         First, our general rule is that “a miscalculation or erroneous sentence estimation by

a defense counsel is not a constitutionally deficient performance rising to the level of



         5
         Although Mr. Knittel’s appellate brief only raises this argument in passing, Mr.
Knittel originally raised this claim in his § 2255 petition before the district court and does
revive it on appeal. See Pet. Br. at 21 (“Are you telling me, standby counsel does not
have an ethical obligation to inform defendant of what the statutes say, concerning
sentencing guidelines.”); see also id. at 25 (describing what Mr. Knittel’s counsel had
told him about the Guidelines).


                                             - 12 -
ineffective assistance of counsel.” United States v. Washington, 619 F.3d 1252, 1258-59

(10th Cir. 2010) (quotations omitted).

         Second, even if Mr. Knittel’s counsel was deficient on this score, Mr. Knittel fails

to show a reasonable probability of a different result if his counsel had correctly

calculated his criminal history. Mr. Knittel acknowledged at his plea hearing that he

understood the trial court, not his counsel, would determine his Guidelines sentence. See

Dist. Ct. Order at 4-5. Thus, he fails to show how he was prejudiced by his counsel’s

sentencing miscalculation. See United States v. Taylor, 454 F.3d 1075, 1080 (10th Cir.

2006) (“Here, even if we assume that counsel's performance was deficient in estimating

the sentencing range, Mr. Taylor has not shown that he was prejudiced by the failure.”).

         Jurists of reason could not debate the correctness of the district court’s holding

that Mr. Knittel is not entitled to relief on this claim. We therefore deny COA on this

issue.

                                     III. CONCLUSION

         We deny Mr. Knittel’s request for a COA and dismiss this matter. We also deny

Mr. Knittel’s motion to proceed ifp.

                                             ENTERED FOR THE COURT


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




                                             - 13 -
