                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 16 2002
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,                      No. 02-3145
                                               D.C. No. 00-CR-10026-01-JTM
      v.                                           and 01-CV-3345-JTM
                                                        (D. Kansas)
ALBERT J. THOMAS, SR.,

            Defendant - Appellant.




                           ORDER AND JUDGMENT           *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This appeal arises out of proceedings in the United States District Court for

the District of Kansas, where the defendant Albert J. Thomas, Sr., pleaded guilty

to the following charges: (1) manufacture of cocaine base, (2) distribution of

cocaine base; and (3) possession with intent to distribute cocaine base, all in

violation of 21 U.S.C. § 841(a)(1). Mr. Thomas now seeks to collaterally attack

those convictions. Because Mr. Thomas signed a written plea agreement in which

he waived his right to challenge his sentence, we dismiss this appeal for lack of

jurisdiction.


                                  I. BACKGROUND

      The waiver provision of Mr. Thomas’s plea agreement states:

                The defendant . . . is aware that Title 18, United States
                Code, Section 3742 affords the defendant the right to
                appeal the sentence imposed. Acknowledging all this,
                the defendant knowingly waives the right to appeal any
                sentence within the maximum provided in the statute(s) of
                conviction (or the manner in which that sentence was
                determined) on the grounds set forth in Title 18, United
                States Code, Section 3742 or on any ground whatever, in
                exchange for the concession made by the United States in
                this plea agreement. The defendant also waives his right
                to challenge his sentence or the manner in which it was
                determined in any collateral attack, including but not
                limited to a motion brought under Title 28, United States
                Code, section 2255.

Rec. vol. I, doc. 133, attach. 1, at 2-3 (Plea Agreement, filed May 17, 2000). The

agreement adds that “the parties further agree that the United States has made no


                                           -2-
promises or representations to this defendant or his attorney regarding what

sentence might be imposed or which sentencing guideline level will be

appropriate.” Id. at 3.

      During the plea hearing, Mr. Thomas stated that he understood the

provisions of the plea agreement, that no “force, threats, duress or coercion or any

other . . . promises other than what’s contained in the plea agreement” had been

employed to induce him to enter into the plea agreement, Rec. vol. II, doc. 132, at

22 (Change of Plea Hr’g, May 17, 2000), that he had had the opportunity to

consult with his counsel about the plea agreement, and that he was satisfied with

counsel’s representation. Additionally, the district court asked Mr. Thomas if he

understood that “you’re not going to be able to attack your sentence collaterally

or what we typically call a habeas corpus petition, a § 2255 action. You

understand that?”   Id. at 33. Mr. Thomas responded affirmatively.   Id.

      The district court accepted Mr. Thomas’s guilty plea. The court

subsequently sentenced him to concurrent terms of imprisonment of 108 months

on each of the three counts.

      Proceeding pro se, Mr. Thomas then filed a series of motions challenging

his sentence, including (1) a Writ of Error Coram Nobis at Common Law;”     1
                                                                                (2) a


      1
        “In Latin, ‘coram nobis’ means ‘before us.’ Originally, the petition was
submitted in the court of the King’s Bench, or ‘before us’ in the sense of being
                                                                      (continued...)

                                          -3-
“Clarification of 28 USC §§1651 & 1654 Pursuant to a Writ of Error Coram

Nobis at Common Law;” (3) an “Amended Writ of Error Coram Nobis at

Common Law;” (4) a “Motion for Pre-trial Detention Jail Credit;” (5) a motion

under 28 U.S.C. § 2255; and (6) a motion requesting grand jury records regarding

his indictment.   See Rec. vol. I, docs. 114, 117, 118, 125, 131, and 137. The

district court treated all these motions as requesting relief pursuant to 28 U.S.C. §

2255. See Rec. vol. I, doc. 140, at 5 (Order, filed March 14, 2002).   2
                                                                           The court

rejected Mr. Thomas’s various challenges to his sentence on the grounds of the

       1
        (...continued)
before the King. In contrast, the writ of coram vobis, an analogous procedure, was
brought before judges of the court of Common Pleas, or ‘before you.’ The
distinction between these terms is ‘virtually meaningless in the American
context.’” United States v. Sawyer, 239 F.3d 31, 37 n.4 (1st Cir. 2001) (quoting
M. Diane Duszak, Note, Post- McNally Review of Invalid Convictions Through
the Writ of Coram Nobis, 58 Fordham L.Rev. 979, 981 n. 18 (1990)).
       The Supreme Court has explained that a writ of coram nobis is an
“extraordinary remedy” allowed “only under circumstances compelling such
action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 (1954);
see also Klein v. United States, 880 F.2d 250, 253 (10th Cir.1989) (“The writ is
available only to correct errors that result in a complete miscarriage of justice.”).
(internal citation and quotation marks omitted). The writ is usually only applied
in cases where the petitioner has served his sentence and is no longer in custody
or has not yet begun serving the challenged sentence. United States v. Johnson ,
237 F.3d 751, 755 (6th Cir. 2001) (“[T]he writ of coram nobis is available only
when a § 2255 motion is unavailable--generally, when the petitioner has served
his sentence completely and thus is no longer ‘in custody’ as required for § 2255
relief.”) (internal quotation marks omitted).
       2
         Because Mr. Thomas is currently in custody, we agree with the district
court’s characterization of these motions as seeking relief under § 2255. See
Johnson, 237 F.3d at 755 (“A prisoner in custody is barred from seeking a writ of
error coram nobis.”).

                                           -4-
waiver provision of the plea agreement. Alternatively, the district court rejected

Mr. Thomas’s claims on the merits. Mr. Thomas now appeals that ruling.



                                 II. DISCUSSION

      Mr. Thomas seeks a certificate of appealability on (1) claims involving the

alleged ineffective assistance of counsel and (2) the denial of access to records of

the grand jury proceedings. He also seeks to proceed in forma pauperis.

      In order to receive a certificate of appealability (which Mr. Thomas must

obtain in order to prosecute this appeal), Mr. Thomas must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr.

Thomas may make this showing by demonstrating that “reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” See Slack v. McDaniel , 529 U.S. 473, 484 (2000). In order to proceed

in forma pauperis in this appeal, Mr. Thomas “must show a financial inability to

pay the required filing fees and the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Upon review of

the record, we conclude that Mr. Thomas has failed to meet these standards.

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

held that “a waiver of collateral attack rights brought under § 2255 is generally


                                         -5-
enforceable where the waiver is expressly stated in the plea agreement and where

both the plea and the waiver were knowingly and voluntarily made.”         3



Importantly, that general rule is subject to several exceptions, including “where

the agreement was involuntary or unknowing, where the court relied on an

impermissible factor such as race, or whether the agreement is otherwise

unlawful.” Id. at 1182. Moreover, “a plea agreement waiver of postconviction

rights does not waive the right to bring a § 2255 petition      based on ineffective

assistance of counsel claims challenging the validity of the plea or waiver.     ” Id. at

1187 (emphasis added).

       Accordingly, when a defendant who has waived his or her right to

collaterally attack a sentence subsequently asserts a claim for ineffective

assistance of counsel, we must determine what particular conduct the defendant

has challenged. Claims asserting that, because of counsel’s ineffectiveness, either

the plea or the waiver is invalid, are not subject to waiver. On the other hand,




       3
         But see Cockerham, 237 F.3d at 1191 (Briscoe, J., concurring and
dissenting) (concluding that “a defendant can[not] fairly be said to have waived
his right to appeal his sentence on the ground that the proceedings following the
entry of the guilty plea were conducted in violation of his Sixth Amendment right
to counsel, for a defendant’s agreement to waive appellate review of his sentence
is implicitly conditioned on the assumption that the proceedings following entry
of the plea will be conducted in accordance with constitutional limitations”)
(emphasis added).

                                            -6-
“[c]ollateral attacks based on ineffective assistance of counsel claims that are

characterized as falling outside that category are waivable.”   Id. at 1187.



                     A. Ineffective Assistance of Counsel Claims

       In his appellate brief, Mr. Thomas advances the following contentions

regarding ineffective assistance of counsel: (1) “counsel negotiated away

movant’s right to file pre-trial motions which robbed him of a just and concise

evaluation of the situation and exactly what the nature and cause of his charge in

regard to evidence against him;” (2) “counsel allowed the prosecution to breach

the agreement made by all the parties;” (3) “counsel failed to file a notice of

appeal per movement’s request;” and (4) “counsel allowed [the] prosecution to

use prior convictions to enhance movant’s sentence.” Aplt’s Br. at 3.

Significantly, Mr. Thomas does not provide any additional details as to the factual

basis for these claims.

       Upon review of Mr. Thomas’s brief, we conclude that these ineffective

assistance of counsel claims do not relate to the validity of the plea agreement and

waiver. As a result, Mr. Thomas has waived the right to bring these challenges.

       In particular, Mr. Thomas’s first and fourth ineffective assistance

claims—that “counsel negotiated away movant’s right to file pre-trial motions”

and that “counsel allowed [the] prosecution to use prior convictions to enhance


                                            -7-
movant’s sentence”—merely describe the results of the plea agreement and

waiver: Mr. Thomas’s counsel did not take these steps because Mr. Thomas

relinquished the right to do so. The fact that counsel acted consistently with the

provisions of the waiver in no way indicates that he was ineffective in advising

Mr. Thomas regarding the proposed waiver, and Mr. Thomas has set forth no

specific facts indicating that his counsel’s performance was deficient in this

regard.

        Mr. Thomas’s second allegation of ineffective assistance—that his

counsel “allowed the prosecution to breach the agreement made by all the

parties”— is simply too vague to provide any basis for relief.   See Murrell v.

Shalala , 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (stating that “perfunctory

complaints [which] fail to frame and develop an issue [are] insufficient to invoke

appellate review”). Mr. Thomas does not explain how the prosecution breached

the agreement or how this alleged conduct affected the ultimate disposition of this

case.

        Mr. Thomas’s third allegation of ineffective assistance of counsel is

similarly insufficient to overcome the waiver provision. Although he alleges that

his counsel “failed to file a notice of appeal per movement’s request,” he does not

explain on what basis such an appeal could have been filed. Because the plea

agreement contained a waiver of appeal provision, there were only limited


                                            -8-
grounds upon which an appeal could have been filed.     See Cockerham , 237 F.3d

at 1182 (noting that agreements waiving the right to appeal are subject to certain

exceptions, including “where the court relied upon an impermissible factor such

as race, or whether the agreement is otherwise unlawful”). Mr. Thomas does not

argue that one of these exceptions is applicable.

      Because Mr. Thomas’s ineffective assistance claims do not relate to the

validity of the plea agreement and waiver, he has waived the right to assert them

in collateral proceedings “so long as he knowingly and voluntarily entered the

plea and made the waiver.”   Id. at 1188. Our review of the plea proceedings

indicates that Mr. Thomas’s plea and waiver were knowing and voluntary, and in

this appeal he has failed to point to any evidence in the record supporting the

contrary conclusion. In light of the waiver provision of the plea agreement, we

therefore conclude that the district court properly denied Mr. Thomas’s post-

conviction motions insofar as they concerned his ineffective assistance of counsel

claims.



                    B. Denial of Access to Grand Jury Records

      Mr. Thomas also argues that he should have been provided with materials

relating to the grand jury proceedings relating to his indictment. As the district

court noted, “[w]ith few exceptions . . ., records of grand jury proceedings are not


                                         -9-
to be disclosed.” Rec. vol. I, doc. 140 at 7 (citing   United States v. Troutman , 814

F.2d 1428, 1452 (10th Cir. 1987));      see also Troutman , 814 F.2d at 1453 (“[U]pon

the showing of a particularized rather than a general need, the minutes [of a grand

jury proceeding] should be disclosed in a discrete and limited manner.”). In any

event, the plea agreement and waiver preclude Mr. Thomas from now asserting

this claim.



                                   III. CONCLUSION

       For the reasons set forth above, we therefore DENY Mr. Thomas’s

application for a certificate of appealability and DENY his application to proceed

in forma pauperis, and we DISMISS this appeal.



                                   Entered for the Court,




                                     Robert H. Henry
                                     Circuit Judge




                                             -10-
