                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 2 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-7031
 v.                                               (D.C. No. 03-CV-520-P)
                                                        (E.D. Okla.)
 DANIEL JOE PRICE,

          Defendant-Appellant.


                                     ORDER


Before EBEL, MURPHY and McCONNELL, Circuit Judges.


      Daniel Joe Price (“Defendant”), a federal prisoner appearing pro se and in

forma pauperis, 1 seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his Motion to Vacate, Set Aside, or Correct Sentence,

brought pursuant to 28 U.S.C. § 2255. Also pending is Defendant’s Motion for

Reconsideration regarding our decision to deny his motion to strike the

government’s response to his application for COA as untimely.




      1
       Based on our review of Defendant’s financial declarations, we grant his
motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(1)
(2000).
                                 BACKGROUND

      On October 18, 2000, the government charged Defendant with a six count

indictment alleging three firearms violations and three counts of assaulting or

impeding a federal officer. Defendant originally pleaded not guilty, and the case

proceeded to trial on April 2, 2001. Two-and-one-half weeks into the trial,

however, Defendant decided to enter into a plea agreement whereby he would

plead guilty to two counts of the indictment (felon in possession of a firearm and

assaulting a federal officer) in exchange for a 10-year sentence. In addition, the

government agreed to dismiss all other charges in the indictment, and Defendant

agreed to waive his right to direct appeal and collateral attack on the conviction.

      After a lengthy hearing, the district court found Defendant’s actions to be

voluntary and accepted the plea. In accordance with the agreement, the court

sentenced Defendant to 10 years in prison followed by three years of supervised

release for each count, with the sentences to run concurrently. In addition,

Defendant was fined a special assessment of $100.00 for each count.

      Defendant then filed a direct appeal to this court, in which his attorney

filed an Anders brief. Defendant’s pro se brief, however, raised several

non-jurisdictional issues and alleged antecedent constitutional defects, including

suppression of the fruits of an alleged illegal search warrant, insufficiency of the

evidence, and a violation of Rule 5 of the Federal Rules of Criminal Procedure


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(initial appearance before a magistrate). United States v. Price, 50 Fed. Appx.

968, 969 (10th Cir. 2002). We found that by entering an unconditional guilty

plea, Defendant waived his right to raise these issues on appeal. Id. Defendant

also contended that one of the statutes under which he was convicted, 18 U.S.C. §

922(g), was facially unconstitutional, a claim which we also rejected. Id.

Finding no other non-frivolous grounds for appeal in the record, we dismissed the

case. Id. In addition we found “nothing in the record to indicate that Mr. Price's

guilty plea was not knowing and voluntary.” Id.

      Defendant then filed a § 2255 motion with the district court, in which his

sole ground for relief was ineffective assistance of counsel in connection with his

decision to enter into a guilty plea. Defendant did not contend that his plea was

involuntary, but rather argued that “had it not been for counsel’s errors during the

trial, he would not have had to take counsel’s advice . . . and pleaded [sic]

guilty.” (R.O.A. at Tab 1.) Specifically, Defendant complained about counsel’s

(1) failure to call a particular corroborating witness; (2) failure to have

photographs examined by an expert; (3) failure to raise a Brady violation; (4)

improper raising of a search warrant issue; and (5) failure to challenge the court’s

jurisdiction.

      The district court did not reach the merits of Defendant’s motion, holding

instead that Defendant had explicitly waived any right to collateral attack on the


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sentence as part of his plea agreement. The court noted that it found nothing in

the record to indicate that Defendant’s plea (and therefore the waiver of collateral

relief) was not knowing and voluntary. As a result, the court denied Defendant’s

§ 2255 motion, his application for a COA, and his motion to proceed in forma

pauperis.

                                   DISCUSSION

      In the instant case, Defendant seeks a COA from this court because the

district court denied his request to appeal its decision. See Fed. R. App. P.

22(b)(1). To prevail, Defendant must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). This is accomplished

by establishing 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, 483-484 (2000) (quotations omitted).

      Defendant concedes that his motion does not challenge the voluntariness of

his plea. Rather, his argument is that even a voluntary plea may nevertheless be

invalid if it is motivated by previous instances of ineffective assistance of

counsel. The Tenth Circuit addressed this very situation three years ago in United

States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). In Cockerham, we held

that a waiver of § 2255 rights will be enforced when the collateral attack does not


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challenge counsel’s representation in negotiating or entering the plea or the

waiver. Id. at 1187.

      In the instant case, none of the alleged errors Defendant cites pertain to

plea negotiations. Rather, Defendant argues that counsel’s poor previous trial

performance put him in a position in which a plea was simply the best option.

Under Cockerham, this is not the sort of argument which survives a waiver of

post-conviction rights. See Id. at 1187-1191. Thus, we are not convinced that

reasonable jurists could debate that Defendant’s motion should have been

resolved differently. See Slack, 529 U.S. 483-484.

      Accordingly, we DENY COA and DISMISS the appeal. Defendant’s

pending Motion to Reconsider is also DENIED for the reasons stated in our

earlier order, filed August 13, 2004.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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