                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                    May 2, 2012
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

 v.                                                     No. 12-6005
                                             (D.C. Nos. 5:11-CV-00729-HE and
 FARES ABDO BAYAZEED,                              5:10-CR-00022HE-1)
                                                        (W.D. Okla.)
      Defendant-Appellant .




          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, GORSUCH, Circuit Judges.



      Fares Bayazeed pled guilty in federal district court to one count of

distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). As part

of his plea agreement, he waived his right to appeal or collaterally attack his

guilty plea and sentence. Regardless, Mr. Bayazeed brought a federal habeas

petition under 28 U.S.C. § 2255 asserting several claims, including that he

received ineffective assistance of counsel in making his plea. The district court

dismissed the petition after finding that Mr. Bayazeed’s waiver of appellate rights


      *
         This order is not binding precedent except under the doctrines of law of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.
was knowing and voluntary, that enforcing the waiver would not result in a

miscarriage of justice, and that while Mr. Bayazeed’s claims challenging the

validity of his plea were not subject to the waiver, they were otherwise non-

meritorious. The court also denied Mr. Bayazeed a certificate of appealability

(COA). Before us, Mr. Bayazeed requests a COA in order to appeal the district

court’s decision.

      We may grant this request, however, only if Mr. Bayazeed makes a

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

§ 2253(c)(2). This requires he 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 quotation omitted).

      Mr. Bayazeed has not met this standard. A defendant’s guilty plea,

including a waiver of appellate and collateral attack rights, is enforceable when

made knowingly and voluntarily. United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004). And Mr. Bayazeed averred to the district court both orally and

in writing that the charges against him had been fully explained, that he

understood the nature and consequences of his plea, and that he was not under

threat or coercion. In his habeas petition, Mr. Bayazeed attempts to disavow

these statements, claiming that his counsel did not adequately explain the nature

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of the charges against him and that the prosecution coerced him into the plea

agreement. But as the district court correctly observed, these conclusory

assertions are not sufficient to create a genuine issue of fact as to the knowing

and voluntary nature of his plea and waiver. We have recognized that it may be

appropriate to disregard even a knowing and voluntary waiver when enforcement

would result in a miscarriage of justice. See id. But there is no suggestion that

would be the case here. Accordingly, Mr. Bayazeed’s application for a COA is

denied and this appeal is dismissed.



                                        ENTERED FOR THE COURT


                                        Neil M. Gorsuch
                                        Circuit Judge




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