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

                             FOR THE TENTH CIRCUIT                        January 23, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-8097
                                                (D.C. Nos. 2:16-CV-00074-NDF and
SHELLY LYNN McELROY,                                  2:15-CR-00021-NDF-3)
                                                             (D. Wyo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Shelly McElroy, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to challenge the dismissal of her 28 U.S.C. § 2255 motion.

We deny a COA and dismiss the appeal.

                                           I

      McElroy pled guilty to conspiracy to possess with intent to distribute

methamphetamine and was sentenced to 110 months’ imprisonment. Pursuant to her

plea agreement, McElroy waived her right to appeal. At a change of plea hearing,

McElroy affirmed to the district court that she had reviewed the agreement with her

attorney and she understood all of its terms. The court emphasized to McElroy that

      *
         This order is not binding precedent, except under the doctrines of law of the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.
the plea agreement waived her right to appeal and that the Tenth Circuit routinely

enforces such waivers. When asked if she understood this waiver, McElroy

responded, “Yes, ma’am.”

      Final judgment was entered on September 25, 2015. McElroy subsequently

filed a § 2255 motion alleging ineffective assistance of counsel because her attorney

told her she could not appeal, presented no defense, and failed to share discovery

materials. She also asserted insufficiency of the evidence and requested a sentence

reduction under Johnson v. United States, 135 S. Ct. 2551 (2015). The district court

dismissed each claim as lacking merit or insufficiently pled and denied a COA.

McElroy now seeks a COA from this court.

                                          II

      A prisoner may not appeal the denial of relief under § 2255 without a COA.

§ 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard,

McElroy 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) (quotations omitted).

      McElroy first argues that she is entitled to a sentence reduction under Johnson,

which invalidated the “residual clause” of the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), on due process grounds. This claim lacks merit. Not



                                           2
only was McElroy sentenced after Johnson, but she was also not sentenced under

ACCA or any of the sentencing laws that resemble ACCA.

      Next, McElroy appears to argue that her sentence should be reduced based on

an undefined sentencing disparity. Because she did not raise this argument before the

district court, it is waived. See United States v. Lee Vang Lor, 706 F.3d 1252, 1256

(10th Cir. 2013). Moreover, McElroy was given a below-Guidelines sentence.

      Finally, McElroy challenges the district court’s dismissal of her ineffective

assistance of counsel claims. A petitioner alleging ineffective assistance of counsel

must establish “that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the

deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.

668, 687 (1984). Counsel’s statement to McElroy that she could not appeal does not

constitute ineffective assistance. McElroy’s waiver of her right to appeal was

knowing and voluntary. The waiver was explicit in her written plea agreement and

she stated that she understood the waiver at her change of plea hearing. See United

States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam) (a valid

waiver of appellate rights must be made knowingly and voluntarily). With regard to

McElroy’s claims that counsel failed to present a defense or share discovery

materials with her, the district court determined that McElroy failed to provide any

factual support for these allegations. No reasonable jurist would dispute this

conclusion. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).



                                           3
                                   III

     We DENY a COA and DISMISS the appeal. McElroy’s motion to proceed in

forma pauperis is GRANTED.


                                    Entered for the Court


                                    Carlos F. Lucero
                                    Circuit Judge




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