                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 31, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 10-3210
 v.                                           (D.C. Nos. 10-CV-02309-CM and
                                                    06-CR-20099-CM-2)
 WILLIAM MORRISON,                                        (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, EBEL, and LUCERO, Circuit Judges.


      Defendant-Appellant William Morrison, a federal inmate proceeding pro se,

seeks a certificate of appealability (“COA”) so that he may challenge the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. Because Mr. Morrison has not made “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a

COA and dismiss the appeal.



                                    Background

      We discussed the facts underlying Mr. Morrison’s case on direct appeal,

but we will briefly recount the facts relevant to the current habeas motion. See
United States v. Morrison, 356 Fed. App’x 129 (10th Cir. 2009) (per curiam)

(unpublished). Mr. Morrison pleaded guilty to one count of wire fraud and one

count of money laundering. Id. at 129. His plea agreement included a waiver of

his right to appeal or collaterally attack any matter in connection with the

prosecution, conviction, and sentence. R. 48. At the plea colloquy, Mr. Morrison

asserted that he entered the plea knowingly, voluntarily, and of his own free will;

that no one forced or threatened him to do so; that his attorney informed him of

the charges and consequences of pleading guilty; that he had reviewed and

understood the waiver of his right to collaterally attack any matter in connection

with his prosecution, conviction, and sentence; and that he discussed the matter

thoroughly with his attorney and was satisfied with his advice and services. Doc.

237 at 5-6, 14, 28-30, 32, 37-39. He also expressed his desire to be able to

present evidence on his behalf at his sentencing hearing. Id. at 13.

      After granting two motions filed by Mr. Morrison to continue the

sentencing hearing, the court scheduled the hearing for August 21, 2009.

Morrison, 356 Fed. App’x at 130. A preliminary presentence report (“PSR”) was

prepared on July 9, 2009 and disclosed to Mr. Morrison’s counsel. Id. Mr.

Morrison did not object to the preliminary PSR, and the final PSR was filed on

August 13, 2009. Id. On the same day the final PSR was filed, Mr. Morrison’s

counsel filed objections to the preliminary PSR, without explanation for their

untimely filing. Id. On August 17, Mr. Morrison filed a motion to continue the

                                         -2-
sentencing hearing. Id. In that motion, Mr. Morrison’s counsel explained that he

had prepared objections to the preliminary PSR before the final PSR was filed,

but had mistakenly failed to file them. Id. The court denied the motion to

continue on August 19, and Mr. Morrison filed another motion to continue,

arguing that proceeding to sentencing was not proper under Fed. R. Crim. P.

32(g), which provides that the probation officer must submit to the court and

parties the PSR and an addendum containing any unresolved objections, the

grounds for those objections, and the probation officer’s comments on them at

least seven days before sentencing. Id.; see also Fed. R. Crim. P. 32(g). The

government opposed the continuance. Morrison, 356 Fed. App’x at 130.

      At the sentencing hearing on August 21, the court denied Mr. Morrison’s

pending motion to continue and imposed a sentence. Id. First, the court held that

the final PSR had been filed on August 13 and that its disclosure fulfilled the

requirements under Rule 32. Id. The court considered Mr. Morrison’s objections

to the preliminary PSR—even though they were not timely filed—and denied the

motion for a continuance. Id. Upon advice from counsel, Mr. Morrison chose not

to participate in the sentencing hearing, even though Mr. Morrison had expressed

his desire to do so at the plea colloquy. Id. After the government presented

evidence, the court sentenced Mr. Morrison to 100 months for each count, to be

served concurrently, three years supervised release, and $652,549.36 in

restitution. R. 127. Mr. Morrison timely appealed, challenging the district

                                         -3-
court’s sentencing proceedings, and the government moved to enforce the appeal

waiver in Mr. Morrison’s plea agreement. Morrison, 356 Fed. App’x at 130. We

granted the government’s motion and dismissed the appeal. Id. at 133.

      Mr. Morrison then filed a timely § 2255 motion in which he argued that (1)

counsel was ineffective, (2) the government violated his speedy trial rights, (3)

the Corrections Corporation of America (“CCA”) violated his due process rights,

and (4) the court failed to fulfill its obligations in the plea agreement. R. 57-76.

The government filed a motion to enforce the waiver in the plea agreement. Id. at

77-104. The district court granted the government’s motion to enforce the waiver

in the plea agreement and denied the § 2255 motion on August 4, 2010. Id. at

138. Mr. Morrison filed a notice of appeal on August 11, 2010. Id. at 139.



                                      Discussion

      To appeal from the denial of a § 2255 motion, Mr. Morrison must obtain a

COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, Mr. Morrison must

make “a substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2). To satisfy this requirement, Mr. Morrison 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

                                         -4-
omitted).

      A waiver of the right to bring a collateral attack in a plea agreement is

generally enforceable. United States v. Cockerham, 237 F.3d 1179, 1181 (10th

Cir. 2001). We enforce these waivers so long as: (1) the collateral attack falls

within the scope of the waiver; (2) the defendant knowingly and voluntarily

waived his right to collateral review; and (3) enforcing the waiver would not

result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004) (en banc) (per curiam) (reviewing waiver of appellate rights); see

also Cockerham, 237 F.3d at 1182-83 (holding that the enforceability of a waiver

of the right to bring a collateral attack is assessed under the same standards as a

waiver of appellate rights). In Cockerham, however, we held that “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 the waiver.” 237 F.3d at 1187. On appeal, Mr. Morrison

raises the same issues as before the district court as well as prosecutorial

misconduct. Aplt. Combined Opening Br. & Application for a COA at 2-2E. We

do not think that reasonable jurists could debate whether Mr. Morrison’s motion

should have been resolved in a different manner.

A.    Speedy Trial, Due Process, Court’s Obligation Under the Plea Agreement,
      and Prosecutorial Misconduct Claims.

      Applying the first prong of Hahn’s three-part inquiry, all claims other than


                                         -5-
the ineffective assistance of counsel claim (which is addressed below) fall within

the scope of his waiver. R. 130-31. Paragraph 10 of the plea agreement, entitled

“Waiver of Appeal and Collateral Attack,” broadly states:

      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. . . . The defendant also waives any right to
      challenge a sentence or otherwise to attempt to modify or change his
      sentence or manner in which it was determined in any collateral attack,
      including, but not limited to, a motion brought under 28, U.S.C. § 2255
      [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187
      (10th Cir. 2001)] . . . . In other words, the defendant waives the right
      to appeal the sentence imposed in this case except to the extent, if any,
      the court departs upwards from the applicable guideline range
      determined by the court.

R. 48 (brackets in original).

      In addition, the second Hahn factor is met because the evidence in the

record—both in the plea colloquy and the “Waiver of Appeals and Collateral

Attack” paragraph in the plea agreement—is sufficient to show that Mr. Morrison

knowingly and voluntarily waived his rights to appeal or to collaterally attack his

sentence. Id. at 128-29; see also Hahn, 359 F.3d at 1325 (holding that in

determining whether a defendant entered a plea agreement knowingly and

voluntarily, we should examine the language of the plea agreement and whether

there was an adequate colloquy).

      Finally, enforcing the waiver would not result in a miscarriage of justice.

A waiver of postconviction rights results in a miscarriage of justice and is

unenforceable if the defendant can establish one of the following: (1) the district

                                        -6-
court relied on an impermissible factor such as race; (2) the prisoner’s counsel

was ineffective concerning the negotiation of the plea agreement; (3) the sentence

exceeds the statutory maximum; or (4) the waiver is otherwise unlawful.

Cockerham, 237 F.3d at 1182 (citations omitted). Of these factors, Mr. Morrison

contends only that he received ineffective assistance of counsel. We address that

claim separately below. Because the Hahn factors are met, the waiver is

enforceable for all other claims.

B.    Ineffective Assistance of Counsel.

      Under Cockerham, “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 the waiver.” 237 F.3d at

1187. We have stated in unpublished opinions that the Cockerham exception

applies only to ineffective assistance of counsel claims challenging the

negotiation or validity of the plea or waiver. See, e.g., United States v. Akers,

377 Fed. App’x 834, 836 (10th Cir. 2010) (per curiam) (unpublished) (“The

Cockerham exception only applies to ineffective assistance of counsel claims

challenging the negotiation of the plea and waiver and does not apply to

ineffective assistance of counsel claims challenging counsel’s performance at

sentencing.” (citing Cockerham, 237 F.3d at 1187)); United States v. Masters, 317

Fed. App’x 750, 755 (10th Cir. 2009) (unpublished) (“To withstand enforcement

[of a plea waiver], the [ineffective assistance of counsel] claim must specifically

                                        -7-
‘challenge counsel’s representation in negotiating or entering the plea or the

waiver.’” (quoting Cockerham, 237 F.3d at 1187)).

      Mr. Morrison argues that his counsel was ineffective for: (1) not preparing

for the sentencing hearing; (2) failing to timely file objections to the PSR; (3) not

explaining the government’s appeal waiver correctly before advising Mr.

Morrison about the waiver; (4) assuring Mr. Morrison that if he did not

participate in his sentencing hearing that the court of appeals would remand his

case for sentencing; (5) not protecting Mr. Morrison’s speedy trial rights; (6) not

fully investigating exculpatory discovery items; and (7) never giving Mr.

Morrison the late objections that he filed on Mr. Morrison’s behalf. Combined

Opening Br. & Application for a COA at 2. Of these claims, only one—not

explaining the government’s appeal waiver correctly before advising Mr.

Morrison about the waiver—challenges the validity of the plea or the waiver, and

is therefore not waived under Cockerham.

      To establish a successful claim for ineffective assistance of counsel, Mr.

Morrison must show that “(1) that counsel’s performance was deficient, and (2)

that this deficient performance prejudiced his defense, depriving him of a fair

trial with a reliable result.” United States v. Orange, 447 F.3d 792, 796 (10th Cir.

2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove

counsel’s performance was deficient, Mr. Morrison “must show that his

attorney[’s] ‘representation fell below an objective standard of reasonableness.’”

                                         -8-
Roman v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (quoting Strickland, 466

U.S. at 687-88). To prove prejudice concerning the negotiation of the plea, Mr.

Morrison must show that there is a “‘reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to

trial.’” Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (quoting Hill

v. Lockhart, 474 U.S. 52, 59 (1985)).

      Mr. Morrison’s only contention that survives the waiver is that counsel

“fail[ed] to explain the appeal waiver correctly at the plea hearing.” Aplt.

Combined Opening Br. & Application for a COA at 8. There is no evidence in

the record which suggests that Mr. Morrison’s attorney incorrectly explained the

plea or waiver. Indeed, both the plea colloquy and language in the plea indicate

that Mr. Morrison fully understood the plea and waiver and that he was satisfied

with his attorney’s explanation of them.

      Construing Mr. Morrison’s motion liberally, however, he appears to argue

that he would not have entered the plea if he had known that his attorney was not

going to present evidence on his behalf at the sentencing hearing. Id. at 7-8; R.

119-20. At the sentencing hearing, after the court denied Mr. Morrison’s motion

to continue, Mr. Morrison’s counsel advised Mr. Morrison not to present evidence

at the sentencing hearing so that he could preserve the Fed. R. Crim. P. 32

argument for appeal and because he was not prepared for the hearing, as he did

not know what to prepare for. Doc. 229 at 17-18. Still, this argument ultimately

                                           -9-
concerns Mr. Morrison’s counsel’s performance at sentencing, and not his

performance in the negotiation or validity of the plea or waiver; thus the

Cockerham exception does not apply to this argument. See Akers, 377 Fed.

App’x at 836 (citing Cockerham, 237 F.3d at 1187). In an unpublished case with

a similar issue, we noted, without deciding, that defendant’s argument that

counsel was ineffective for instructing defendant not to speak on his own behalf

at sentencing would likely be barred by defendant’s collateral attack waiver

because it did not relate to counsel’s performance in negotiating or entering the

plea or waiver. United States v. Abston, No. 10-5091, 2010 WL 4367124, at *6

n.4 (10th Cir. Nov. 5, 2010) (unpublished). We proceeded to address the

ineffective assistance of counsel argument, however, because the government did

not seek to enforce the waiver. Id. The government in this case filed a motion to

enforce the waiver; thus, we need not address the ineffective assistance of counsel

claim.

         In sum, reasonable jurists could not debate whether Mr. Morrison’s motion

should have been resolved in a different manner. Mr. Morrison has failed to

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §




                                         - 10 -
2253(c)(2). Accordingly, we DENY his request for a COA and DISMISS his

appeal.



                                   Entered for the Court


                                   Paul J. Kelly, Jr.
                                   Circuit Judge




                                   - 11 -
