                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       February 1, 2006
                   UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT                             Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                        No. 05-3185
                                             (D.C. Nos. 03-CR-40024-01-JAR;
 v.
                                                    04-CV-3094-JAR)
                                                         (D. Kan.)
 KORY FLYNN ORR,

       Defendant-Appellant.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Kory Flynn Orr, a federal prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to challenge the denial of his 28 U.S.C. § 2255 petition.

Orr claims he was denied effective assistance of counsel both during sentencing

and while negotiating the waiver of his appeal and post-conviction rights. For

substantially the same reasons set forth by the district court, we DENY Orr’s

request for a COA and DISMISS.

      Orr pled guilty to possession with intent to distribute more than fifty grams

of a mixture containing methamphetamine and was sentenced to sixty months
imprisonment. In his plea agreement, Orr waived his rights of appeal and his

rights to post-conviction remedies. Notwithstanding the waiver, Orr filed a

§ 2255 petition in federal district court challenging his plea as unknowing and

involuntary. Orr claimed that his counsel, Jerold Berger, was ineffective in

representing him in the plea negotiations because Berger misinformed Orr of the

likelihood that he would receive a sentence adjustment under U.S.S.G. § 5C1.2

for being a first time offender.

      On Orr’s arrest, authorities recovered a handgun from his car. In

discussion with Berger prior to making a plea, Orr asked if the government was

likely to bring a firearms charge. Orr claims that Berger told him that the “gun

issue” was “over with.” In that same conversation, Berger allegedly advised Orr

that he was eligible for a “safety valve” reduction in sentence. Specifically,

Berger informed Orr that there were three requirements for receiving the “safety

valve” reduction under U.S.S.G. § 5C1.2 and that Orr met each of these

requirements. Orr claims that he relied on this conversation in making his

decision to plead guilty. At sentencing, the court found that Orr possessed a

firearm in connection with his offense and thus failed to qualify for the § 5C1.2

sentence reduction. The district court denied Orr’s habeas petition, reasoning that




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even if Berger’s performance was deficient, Orr was not prejudiced, and

subsequently denied Orr’s request for a COA. 1

      Orr argues that his counsel rendered ineffective assistance in negotiating

the plea agreement, thereby making the waiver of his appellate and post-

conviction rights unknowing and involuntary. He claims that his attorney advised

him to waive his post-conviction rights on the basis of inaccurate information

about the sentencing guidelines. He requests that we grant COA and remand for

an evidentiary hearing into whether counsel was ineffective in negotiating the

waiver of appeal and post-conviction rights.

      Even if he has waived his post-conviction rights, a defendant may file a

habeas petition under § 2255 if he presents the basis for a claim of ineffective

assistance of counsel, and if that claim “pertains to the validity of the plea.”

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). Orr’s petition

does so, permitting review of the merits.


      1
        Because Orr’s petition was filed after April 24, 1996, the effective date of
the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999). AEDPA conditions a petitioner’s right to appeal a denial of
habeas relief under § 2255 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(B). A
COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” § 2253(c)(2). This requires Orr to 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) (quotations omitted).

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      To establish that his plea was based on ineffective assistance of counsel,

Orr must demonstrate that his counsel’s performance was so deficient that it “fell

below an objective standard of reasonableness, ” Strickland v. Washington, 466

U.S. 668, 688 (1984), and that “but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” United States v.

Harms, 371 F.3d 1208, 1211 (10th Cir. 2004) (quotation omitted).

      Orr argues that Berger was ineffective because he did not have an

“understanding of the sentencing guidelines in relation to the facts.” United

States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983); see also United States v.

McCoy, 215 F.3d 102, 108 (D.C. Cir. 2000). However, under our precedent, a

“miscalculation or erroneous sentence estimation by defense counsel” does not

constitute ineffective assistance of counsel. United States v. Gordon, 4 F.3d

1567, 1570 (10th Cir. 1993). Moreover, “a defendant’s erroneous expectation,

based on his attorney’s erroneous estimate, likewise does not render a plea

involuntary.” Wellnitz v. Page, 420 F.2d 935, 937 (10th Cir. 1970). Thus, Orr

has not demonstrated a “substantial showing of the violation of a constitutional

right.” 28 U.S.C. § 2253(c)(2).

      As a second argument, Orr claims that his counsel was ineffective at

sentencing because he did not challenge the government’s allegations in

connection with enhancements applied due to his alleged possession of a firearm.


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Because this argument does not relate to counsel’s performance in negotiating the

plea, it is barred by Orr’s plea agreement.

      We GRANT Orr’s motion to proceed in forma pauperis. His petition for




COA is DENIED and his case is DISMISSED.


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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