                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   April 28, 2011
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 10-5159
 v.                                        (D.C. Nos. 4:08-CV-00088-TCK-TLW
                                                and 4:05-CR-00091-TCK-5)
 CURTIS DEON JONES,                                     (N.D. Okla.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Curtis Deon Jones, a federal inmate proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his motion to vacate,

set aside or correct his sentence. 28 U.S.C. § 2255. Because we conclude that

Mr. Jones has failed to make “a substantial showing of the denial of a

constitutional right,” we deny his request for a COA, and dismiss the appeal. 28

U.S.C. § 2253(c)(2).

      Mr. Jones was charged in a multiple-count superseding indictment (along

with nine other defendants) with a racketeering conspiracy including acts of

violence and illegal drug distribution in connection with his membership in the

Hoover Crips gang. Doc. 247; 18 U.S.C. §§ 1962(d), 1963. He pled guilty to a
single count pursuant to a plea agreement in which he waived his right to a direct

appeal and to collaterally attack his conviction and sentence (except for

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver). Doc. 729-2 at 3. He was sentenced to 260 months’ imprisonment. 1 R.

71. His direct appeal to this court was dismissed based on the waiver in his plea

agreement. United States v. Jones, 236 Fed. App’x. 449, 450 (10th Cir. 2007)

(unpublished). Mr. Jones then filed the current motion to vacate, set aside or

correct his sentence, Docs. 806, 894, which the district court denied. United

States v. Jones, Nos. 05-CR-91-005-TCK, 08-CV-88-TCK-TLW, 2010 WL

4809270 (N.D. Okla. Nov. 17, 2010).

      To obtain a COA, a petitioner must 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 marks and citation omitted). Because Mr. Jones is

proceeding pro se, we construe his pleadings liberally. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991).

      On appeal, Mr. Jones contends that the:

      a. District court failed to consider important argument[sic] involving
      Mr. Jones’s competency to enter a plea of guilty.
      b. District court erred in its recitation or understanding of the facts
      surrounding the involuntary, forced, and coerced plea agreement.
      c. District court failed to consider important argument[sic] that

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      supported ineffective assistance claim prior to plea agreement.

Aplt. Br. 6-7.

      Mr. Jones asserts that the district court’s failure to conduct a competency

hearing prior to his plea was violative of due process and that his counsel was

ineffective for failing to move for a psychiatric evaluation. Aplt. Br. 7. But the

record is devoid of any indication that Mr. Jones was not competent to enter a

plea, given the court’s inquiry into and Mr. Jones’s responses regarding his

mental health at the plea hearing. See United States v. Crews, 781 F.2d 826, 833

(10th Cir. 1986) (“To raise a substantial question requiring a competency hearing

there must be some evidence to create doubt on the issue.”). Therefore, as Mr.

Jones’s claim pertains to the effectiveness of his counsel–i.e., that counsel

rendered ineffective performance by not making a motion for psychological

examination–there is nothing in the record to suggest counsel’s failure to make

such a motion was unreasonable. A defendant claiming ineffective assistance of

counsel must show that “counsel’s representation fell below an objective standard

of reasonableness” and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 46 U.S. 668, 688, 694 (1984). Here,

counsel’s performance was objectively reasonable given the court’s compliance

with Federal Rule Crim. P. 11 in performing its colloquy and given the lack of

any indication that Jones was not mentally fit to enter a plea. We cannot

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conclude that reasonable jurists could debate the disposition of the petition below.

In addition, the colloquy demonstrates that Mr. Jones’s plea was made voluntarily

and without coercion.

       Mr. Jones’s claim that counsel’s statements during sentencing rendered

counsel ineffective relates to sentencing and is, therefore, within the terms of the

waiver. See United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001).

Likewise, his assertion of ineffective assistance based on failure to make a claim

of insufficient evidence and abandonment of a viable defense amounts to a

challenge to his conviction and, thus, was waived.

      We DENY a COA and DISMISS the appeal. Any other pending motions

are DENIED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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