                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                             July 19, 2010

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                             No. 10-3049
 v.                                              (D.C. Nos. 2:09-CV-02349-JWL and
                                                       2:07-CR-20072-JWL-1)
 JEREMY GARROD,                                               (D. Kan.)
           Defendant–Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


       Jeremy James Garrod, a federal prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255

habeas petition.1 We deny a COA and dismiss the appeal.

                                             I

       Garrod pled guilty to one count of conspiracy to distribute more than fifty grams

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       1
       Because Garrod proceeds pro se, we liberally construe his application for a COA.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
of methamphetamine in violation of 21 U.S.C §§ 841 and 846 pursuant to a plea

agreement. Under the plea agreement, Garrod waived his right to appeal or collaterally

attack his conviction and sentence if the sentence fell within the United States Sentencing

Guidelines (“USSG”) range as “determined appropriate by the court.” In exchange, the

government agreed to request a two-to-three level reduction for acceptance of

responsibility, provided Garrod continued to manifest acceptance of responsibility. In

addition, the government agreed not to request an upward departure, provided Garrod did

not request a downward departure. The agreement further noted that the government

maintained sole discretion to determine whether to request a sentence reduction for

substantial assistance pursuant to USSG § 5K1.1.

       Prior to sentencing, Garrod moved for a downward departure, alleging that the

government had prevented him from providing substantial assistance in bad faith.

Concluding that Garrod’s pre-sentencing actions showed a lack of acceptance of

responsibility, the government declined to move for a reduction in offense level. 2 The

court nevertheless included a two-level reduction for acceptance of responsibility in

calculating Garrod’s USSG range. Garrod was sentenced to thirty years’ imprisonment—

at the low end of his advisory range.


       2
        The government cited Garrod’s move for a downward departure, dispute as to the
scope of his role in the conspiracy, violations of release conditions, and challenges to
relevant conduct (which were frivolous in the government’s view).



                                           -2-
       Garrod did not directly appeal his conviction or sentence, but he filed a § 2255

petition in federal district court alleging that the government breached the plea agreement

and that his counsel was ineffective. The government moved to enforce Garrod’s waiver

of his right to collaterally attack his sentence. Determining that the government did not

breach the plea agreement, that some of Garrod’s claims were foreclosed by the plea

agreement, and that his remaining claims lacked merit, the district court granted the

government’s motion and dismissed Garrod’s petition. Garrod timely appealed that

dismissal.3

                                             II

       Because the district court did not grant him a COA, Garrod may not appeal the

district court’s decision absent a grant of a COA by this court. § 2253(c)(1)(B). To

obtain a COA, Garrod must show “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) (quotations omitted).

                                             A

       Garrod contends the government breached the plea agreement when it: (1) failed

       3
        Garrod filed a notice of appeal, along with a motion to extend the time to file a
notice of appeal, fifteen days after his sixty-day deadline to appeal expired. See Fed. R.
App. P. 4(a)(1)(B). Determining there was good cause and excusable neglect, the district
court granted an extension of time to file a notice of appeal pursuant to Federal Rule of
Appellate Procedure 4(a)(5). Accordingly, Garrod’s appeal was timely.


                                            -3-
to recommend a reduction for an acceptance of responsibility; and (2) requested a life

sentence. Because Garrod did not advance these claims in a direct appeal, his habeas

petition cannot succeed unless he can show cause for and prejudice resulting from this

failure. See United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). Garrod

alleges that he asked his attorney to file a direct appeal but his attorney failed to do so,

allegations which, if proven, could demonstrate cause. See Abels v. Kaiser, 913 F.2d

821, 823 (10th Cir. 1990). However, any reasonable jurist would conclude that Garrod

has failed to demonstrate prejudice.

       In his application for COA, Garrod claims that the government had a

nondiscretionary duty to request a downward adjustment in offense level for acceptance

of responsibility. However, the plea agreement expressly conditioned the government’s

obligation upon Garrod’s “continuing manifestation of acceptance of responsibility as

determined by the United States.” Garrod does not allege facts suggesting that the

government declined to seek a reduction based on bad faith or improper motive and thus

cannot prevail on this claim.

       Garrod also contends the government’s request for a life sentence constituted an

upward departure prohibited by the plea agreement. Even assuming that the

government’s request was a motion for an upward departure, Garrod concedes that the

plea agreement permitted the government to so move if he requested a downward

departure and admits that his attorney moved for a downward departure. Garrod argues


                                             -4-
that he should “not be held responsible for his attorney’s actions.” This argument lacks

merit. See Vermont v. Brillon, 129 S. Ct. 1283, 1290-91 (2009) (defense counsel’s

actions in furtherance of litigation are attributable to the defendant). Because Garrod

moved for a downward departure, the plea agreement entitled the government to move

for an upward departure.

                                              B

       Garrod further alleges his counsel was ineffective for failing to advise him

regarding alleged errors in the calculation of his sentence, and by failing to inform him

that the indictment was multiplicitous. Neither claim provides ground for relief. We

have consistently held that a “miscalculation or erroneous sentence estimation by a

defense counsel is not a constitutionally deficient performance rising to the level of

ineffective assistance of counsel.” United States v. Gordon, 4 F.3d 1567, 1570-71 (10th

Cir. 1993); accord United States v. Silva, 430 F.3d 1096, 1099 (10th Cir. 2005). Further,

no reasonable jurist could dispute the district court’s conclusion that the indictment was

not multiplicitous. See United States v. Wood, 57 F.3d 913, 920 n.3 (10th Cir. 1995)

(conspiracy charge under 21 U.S.C. § 846 and underlying possession charge not

multiplicitous). Counsel’s failure to advise Garrod on this issue was no failure at all.4



       4
         Garrod also argues that his counsel was ineffective for failing to object to
allegedly erroneous information being considered during sentencing. Because this
alleged ineffectiveness does not “pertain[] to the validity of the plea,” Garrod may not
                                                                               Continued . . .

                                            -5-
       Garrod makes two final claims that merit only brief mention. First, he alleges that

trial counsel was ineffective for failing to file a direct appeal. But by his own admission,

he did not specifically argue this issue in his § 2255 petition. We therefore decline to

consider the issue. See O’Connor v. City & County of Denver, 894 F.2d 1210, 1214

(10th Cir.1990). Second, he argues counsel’s cumulative errors warrant relief. Because

Garrod has not demonstrated error, relief on this ground would be inappropriate. See

Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998).

                                             III

       For the foregoing reasons, we DENY a COA and DISMISS the appeal.



                                                   Entered for the court,



                                                   Carlos F. Lucero
                                                   Circuit Judge




assert this claim in light of his waiver of collateral remedies. United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).


                                            -6-
