                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 12, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



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

              Plaintiff- Appellee,
                                                        No. 06-6076
       v.                                             (W . D. Oklahoma)
                                                 (D.C. Nos. 05-CV-543-C and
 DECORY DANYAYLE W ILLIA M S,                           04-CR-81-C)

              Defendant - Appellant.




                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      Decory Danyayle W illiams seeks a certificate of appealability (“COA”) to

appeal the district court’s order denying his 28 U.S.C. § 2255 petition to vacate,

modify, or set aside his sentence. In that § 2255 petition, M r. W illiams alleged

ineffective assistance of counsel. For substantially the same reasons set forth by

the district court in its well-reasoned order, we deny M r. W illiams’s application

for a COA and dismiss this matter.
                                 I. BACKGROUND

      M r. W illiams pleaded guilty to interstate transportation of a minor female

with intent that the minor engage in prostitution, a violation of 18 U.S.C. § 2423.

His plea agreement with the government provided that M r. W illiams

knowingly and voluntarily waives his right to:

                   a. A ppeal or collaterally challenge his guilty plea
             and any other aspect of his conviction, including but not
             limited to any rulings on pretrial suppression motions or
             fany other pretrial disposition of motions and issues.

                    b. Appeal, collaterally challenge, or move to
             modify under 18 U.S.C. § 3582(c)(2) or some other
             ground, his sentence as imposed by the Court and the
             manner in which the sentence is determined, provided the
             sentence is within or below the applicable guideline range
             determ ined by the Court to apply to this case. Defendant
             acknowledges that this w aiver remains in full effect and is
             enforceable, even if the C ourt rejects one or more of the
             positions of the United States or the defendant in
             paragraph 7 concerning the application of the U.S.
             Sentencing Guidelines. 1

Rec. vol. I, doc. 83, at 5 (Plea Agreement, signed June 14, 2004). The district

court sentenced M r. W illiams to a term of 120 months’ imprisonment. M r.

W illiams did not file a direct appeal of his conviction and sentence.




      1
        In paragraph 7 of the plea agreement, the parties agreed that M r.
W illiams should receive a two-level downward adjustment for acceptance of
responsibility pursuant to USSG § 3E1.1(a) if he committed no further crimes and
complied with the plea agreement and that to the extent he qualified for that
downward adjustment, the government would move for an additional one-level
downward adjustment under § 3E1.1.

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      On M ay 16, 2005, M r. W illiams filed the instant 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence. He argued that he had received

ineffective assistance of counsel in violation of his Sixth Amendment rights

because his counsel failed to (1) file a direct appeal, as M r. W illiams had

requested; (2) challenge his sentence on appeal based upon United States v.

Booker, 543 U.S. 220 (2005); and (3) challenge his classification as a career

offender.

      The district court held an evidentiary hearing and heard testimony from M r.

W illiams and his trial counsel. M r. W illiams testified that he called his trial

counsel within twenty-four hours of the sentencing hearing and requested that she

file an appeal. In contrast, his trial counsel testified that M r. W illiams had called

her but that the two had discussed the fact that he had waived his right to appeal

except in limited circumstances. His counsel denied that M r. W illiams had ever

instructed her to file an appeal.

      After hearing the testimony, the district court found M r. W illiams’s counsel

credible and did not believe M r. W illiams’s own account of their conversation.

The court therefore concluded that “[M r.] W illiams did not instruct his counsel to

file an appeal.” Rec. vol. I. doc. 133, at 4 (M em. Op. Jan. 11, 2006). It thus

rejected M r. W illiams’s first claim for ineffective assistance of counsel.

      The court also rejected M r. W illiams’s other claims. In light of its finding

that M r. W illiams had not instructed his counsel to appeal his conviction and


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sentence, it concluded that his counsel was not ineffective for failing to raise a

Booker claim on appeal. As to the claim involving his career offender

classification, the court concluded that it was barred by the waiver of collateral

review in the plea agreement.



                                  II. D ISC USSIO N

       In order to obtain a COA, M r. W illiams must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. W illiams

may make this showing by demonstrating 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.” M iller-El v. Cockrell, 537 U.S. 322, 336

(2003) (internal quotation marks omitted). “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that [the] petitioner will not prevail.” Id. at

338.

       H ere, for substantially the same reasons set forth by the district court, we

conclude that M r. W illiams is not entitled to a COA. The district court made its

finding that M r. W illiams had not instructed his counsel to appeal after hearing

testimony from both parties, and there is no indication that the finding is clearly

erroneous. See United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998)


                                          -4-
(“[W]e review the district court’s . . . findings of fact [on a § 2255 motion] for

clear error.”). In light of that finding, M r. W illiams’s counsel was not ineffective

for failing to file an appeal and failing to raise a Booker claim on appeal. M r.

W illiams’s claim involving his counsel’s failure to challenge his classification as

a career offender also lacks merit. As noted by the district court, such a challenge

is barred by the plea agreement.



                                III. C ON CLU SIO N

      A ccordingly, w e D EN Y M r. W illiams’s application for a COA, and we

DISM ISS this matter.

                                   Entered for the Court,



                                   Robert H. Henry
                                   Circuit Judge




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