                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                        June 30, 2009
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                         No. 09-6005
 v.                                                     (W.D. of Okla.)
 TRISTIN T. CHEADLE,                           (D.C. Nos. 5:08-CV-01115-R and
                                                     5:07-CR-00062-R-1)
              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Tristin Cheadle seeks a certificate of appealability (COA) to challenge the

district court’s dismissal of his motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. Construing Cheadle’s pro se filings liberally, see Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we conclude

Cheadle has failed to make “a substantial showing of the denial of a constitutional




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
right.” See 28 U.S.C. § 2253(c)(2). We therefore deny his request for a COA and

dismiss this appeal.

                                 I. Background

      Cheadle pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). As part of his guilty plea, Cheadle entered

into a plea agreement that, among other things, waived his right to appeal or

collaterally challenge his conviction and sentence. The district court accepted his

plea and the plea agreement, and sentenced Cheadle to 84 months’ imprisonment.

Cheadle did not bring a direct appeal.

      In late 2008, within the allowable time period after his judgment and

conviction became final, Cheadle filed a 28 U.S.C. § 2255 motion in district court

seeking to correct his sentence. In his motion, Cheadle claimed that his sentence

was unlawful because his criminal history was incorrectly calculated.

Specifically, he contended his four prior convictions should have been considered

related cases under the Sentencing Guidelines and that his criminal history

calculation was therefore too high. The district court dismissed Cheadle’s

motion, finding his claim was barred by the waiver in his plea agreement.

      Cheadle now brings this appeal raising the identical arguments.

                                   II. Analysis

      Before a district court’s denial of a motion for relief pursuant to § 2255




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may be appealed, either the district court or this court must issue a COA. 28

U.S.C. § 2255(c)(1)(B). Cheadle is not entitled to a COA unless he makes “a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2);

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). To satisfy this standard, Cheadle

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

omitted).

      Cheadle contends he is entitled to relief because the sentencing court erred

in how it treated his prior convictions in determining his sentencing range. In

particular, Cheadle’s § 2255 filings—both below and on appeal here—challenge

the sentencing court’s calculation of his criminal history under the Guidelines.

This argument, as the district court properly noted, is barred by Cheadle’s waiver

of collateral attack.

      Generally, a waiver of collateral attack rights is enforceable when “the

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

waiver were knowingly and voluntarily made.” United States v. Cockerham, 237

F.3d 1179, 1183 (10th Cir. 2001).

      Cheadle’s plea agreement forbids him from collaterally attacking either his

sentence or “the manner in which the sentence is determined.” R., Vol. I, Doc. 33

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at 6. Because all the claims in his § 2255 motion fit this description, they are

plainly within the scope of the waiver’s terms. Notably, Cheadle does not argue

nor does the record provide a basis to question the knowing and voluntary nature

of the plea agreement and the waiver. See United States v. Hahn, 359 F.3d 1315,

1329 (10th Cir. 2004) (en banc) (per curiam).

      Even under the most liberal construction, Cheadle’s pleadings have raised

no ineffective assistance of counsel claims, or any other claims that may have

survived the plea agreement’s waiver. See Cockerham, 237 F.3d at 1187; see also

Hahn, 359 F.3d at 1329 (defendant must “provide support for the notion that he

did not knowingly and voluntarily enter into his plea agreement”). Finally, we

are not convinced that enforcement of the plea agreement would result in a

miscarriage of justice. See Hahn, 359 F.3d at 1329.

                                  III. Conclusion

      For the foregoing reasons, Cheadle has not made a substantial showing of

the denial of a constitutional right and we DENY his request for a COA and

DISMISS this appeal. We further DENY Cheadle’s motion to proceed in forma

pauperis.

                                       Entered for the Court


                                       Timothy M. Tymkovich
                                       Circuit Judge




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