                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS October 18, 2006

                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                          No. 05-3349
                                               (D.C. Nos. 05-CV-3226-KHV and
 v.
                                                      03-CR-20122-KHV)
                                                           (Kansas)
 JOHNATH AN C.F. ELLIS,

          Defendant-Appellant.



                                     ORDER *


Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Johnathan Charles Foster Ellis, a federal prisoner proceeding pro se,

requests a certificate of appealability (COA) to challenge the district court’s

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

sentence. 1 See 28 U.S.C. § 2253(c)(1) (Before a prisoner may appeal the

dismissal of a § 2255 motion, he must first obtain a COA.). Because we conclude

M r. Ellis w aived his right to collaterally attack his sentence, we deny his



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
         Because he is proceeding pro se, we review M r. Ellis’ pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
application for a COA and dismiss his appeal.

      M r. Ellis pled guilty, pursuant to a plea agreement, to one count of opening

and maintaining a place for the distribution of methamphetamine in violation of

21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. According to the plea agreement, M r.

Ellis understood that the maximum penalty for his crime w as twenty years

imprisonment, a $500,000 fine, the possibility of lifetime supervised release, and

a $100 mandatory special assessment. In signing the plea agreement, M r. Ellis

further conveyed he understood that conduct charged in the dismissed counts, as

well as all uncharged related criminal activity, would be considered when

calculating his offense level under the sentencing guidelines. Following the

acceptance of M r. Ellis’ plea, the district court sentenced him to 100 months

imprisonment.

      M r. Ellis did not appeal his conviction or sentence. Instead, he filed the

present § 2255 motion claiming, among other things, that (1) the district court

improperly enhanced his sentence for possession of a firearm in violation of

Blakely v. Washington, 542 U.S. 296 (2004); (2) his attorney pressured him into

pleading guilty; and (3) his attorney was ineffective for failing to object to the

firearm enhancement or consulting with M r. Ellis regarding the possibility of an

appeal. In an in-depth opinion, the district court dismissed his motion, both on

the ground that he waived his right to collateral attack and on the merits of his

claims. The court also denied his request for a COA, but granted his motion to

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proceed in form a pauperis (ifp).

      W here, as here,

      the district court denies a habeas petition on procedural grounds . . .,
      a COA should issue when the prisoner shows, at least, that jurists of
      reason would find it debatable w hether the petition states a valid
      claim of the denial of a constitutional right and that jurists of reason
      would find it debatable w hether the district court was correct in its
      procedural ruling.

Slack v. M cDaniel, 529 U.S. 473, 484 (2000). The district court provided a well-

reasoned ruling that M r. Ellis w aived by plea agreement his right to collaterally

challenge his sentence. After carefully reviewing the district court’s opinion and

the record in this case, we conclude that jurists of reason would not find the

district court’s waiver determination debatable.

      In exchange for the government’s agreement not to file additional charges

or request an upward departure and its recommendation that he receive a

reduction in his offense level, M r. Ellis agreed to, among other things,

“knowingly and voluntarily waive[] any right to appeal or collaterally attack any

matter in connection with this prosecution, conviction and sentence.” Plea

Agreement at 6. The plea agreement goes on to state that

      [t]he defendant is aware that Title 18, U.S.C. § 3742 affords a
      defendant the right to appeal the conviction and sentence imposed.
      By entering into this agreement, the defendant knowingly waives any
      right to appeal a sentence imposed which is within the guideline
      range determined appropriate by the court. The defendant also
      waives any right to challenge a sentence or otherwise attempt to
      modify or change his sentence or manner in which it was determined
      in any collateral attack, including, but not limited to, a motion

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      brought under Title 28, U.S.C. § 2255 [except as limited by United
      States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)].

Id. 6. At M r. Ellis’ plea hearing, the district court engaged him in a detailed Rule

11 colloquy, asking directly whether M r. Ellis understood that by pleading guilty

he was waiving his right to appeal or collaterally attack his sentence. Rec., supp.

vol. I at 28-32. M r. Ellis replied that he understood and agreed to the waiver. Id.

      In United States v. Cockerham, we held “that a waiver of collateral attack

rights brought under § 2255 is generally enforceable w here the waiver is

expressly stated in the plea agreement and where both the plea and the waiver

were knowingly and voluntarily made.” 237 F.3d at 1183. This is the case even

where, as here, a prisoner raises ineffective assistance of counsel claims so long

as those claims do not assert that ineffective assistance of counsel rendered the

plea or w aiver unknowing or involuntary. Id. at 1187. M r. Ellis claims that his

attorney failed to provide him with effective assistance of counsel by not

objecting to the firearm enhancement and failing to consult with him about the

possibility of an appeal. Both of these claims go to M r. Ellis’ sentence, not the

validity of his plea agreement. Thus, pursuant to Cockerham, we conclude that

M r. Ellis’s ineffective assistance of counsel claims are subject to waiver absent

evidence that he entered into the waiver or plea unknowingly or involuntarily.

      M r. Ellis does, in fact, make such a claim. He asserts he did not enter into

the plea agreement voluntarily because his “attorney was scheduled to take a long



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awaited family vacation during the time [his] case would have gone to trial. This

created a conflict for [his] attorney and he pushed [M r. Ellis] into making an

uninformed plea.” Aplt. COA App. at 3. This conflict was further exacerbated,

M r. Ellis claims, when the district court denied a request for a continuance.

      W e first note that M r. Ellis failed to provide either the district court or this

court with any evidence, beyond his own assertion, that his attorney was

conflicted and, as a result, pressured M r. Ellis to enter into the plea agreement.

M oreover, we have held that even “palpable” pressures exerted by a defendant’s

attorney in an effort to encourage his client to accept a plea agreement “do not

vitiate the voluntariness of his plea; it was still his choice to make.” United

States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996) (defendant’s claim “that he was

‘hounded, browbeaten and yelled at’ by [his attorney] . . . [who] called him

‘stupid’ and ‘a fucking idiot’” did not indicate defendant’s plea w as involuntary

when “the thorough exchange between the court and [defendant] during

administration of the Rule 11 protocol . . . clearly demonstrates that [defendant]

entered his plea willingly and voluntarily at the time he made it.”)

      The plea agreement that M r. Ellis signed included a clause stating that he

believed that his lawyer did all that he could to counsel and assist him. Petition

to Enter Plea of Guilty at 5. Attached to the plea agreement is a statement signed

by M r. Ellis’ attorney stating his opinion that M r. Ellis’ guilty plea was

“voluntarily and understandingly made.” Id. at 7. M oreover, in his Rule 11

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colloquy with the district court, M r. Ellis asserted repeatedly that he was satisfied

with his attorney’s representation, rec., supp. vol. I at 9, 15, and that his plea was

entered into knowingly and voluntarily. Id. at 37. Finally, the plea agreement

clearly set forth the waiver of the right to appeal and collateral attack, and its

language is sufficiently broad to cover attacks on both M r. Ellis’ conviction and

sentence.

      W e conclude the record shows M r. Ellis entered into the plea agreement

knowingly and voluntarily, and hence the waiver contained in the agreement is

presumed to be knowingly and voluntarily agreed to. There is no evidence of

pressure from his attorney, and even if there were such evidence, palpable

pressures do not vitiate his voluntariness. Accordingly, we DENY M r. Ellis’

application for a COA and DISM ISS his appeal.

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge




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