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

                                   TENTH CIRCUIT                             June 9, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                             No. 11-6020
 v.                                                (D.C. Nos. 5:08-CV-00577-M and
                                                         5:01-CR-00181-M-2)
 JASON TODD DAVIS,                                           (W.D. Okla.)
           Defendant–Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, GORSUCH, and EBEL, Circuit Judges.


       Jason Todd Davis, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 habeas petition. We

deny a COA and dismiss the appeal.

                                             I

       Davis was convicted in federal court on twenty-five counts related to a

phencyclidine (“PCP”) distribution conspiracy. He was initially sentenced to life in


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
prison, a sentence we affirmed on direct appeal. See United States v. Ward, 96 F. App’x

615 (10th Cir. 2004) (unpublished). On further review, the Supreme Court vacated

Davis’ life sentence for reconsideration under United States v. Booker, 543 U.S. 220

(2005). See Ward v. United States, 543 U.S. 1103, 1116 (2005). On remand to the

district court, Davis was sentenced below his advisory Guidelines range to 480 months’

imprisonment. We again entertained an appeal and affirmed. See United States v. Davis,

213 F. App’x 725 (10th Cir. 2007) (unpublished). The Supreme Court denied certiorari.

See Davis v. United States, 550 U.S. 976 (2007).

       Having exhausted direct review, Davis filed a § 2255 petition in the district court.

Davis asserted four claims of ineffective assistance of counsel, alleging: (1) pre-trial

counsel failed to raise Fed. R. Crim. P. 11 at the arraignment; (2) trial counsel failed to

raise Rule 11; (3) trial counsel failed to challenge various sentencing enhancements and

calculations; and (4) trial counsel did not demand the district court state specific reasons

for the sentence imposed. More than two years after filing his original petition and

shortly before the district court was set to rule, Davis filed a motion to supplement,

seeking to add a new claim of ineffective assistance based on counsel’s failure to raise

Guidelines Amendment 484. The district court denied the motion to supplement the

pleadings and rejected Davis’ ineffectiveness claims.

                                              II

       A petitioner must first obtain a COA to appeal the denial of a § 2255 petition. 28

U.S.C. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a
                                            -2-
substantial showing of the denial of a constitutional right,” § 2253(c)(2), which requires a

petitioner to 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).

       Davis argues that the district court erred in denying his motion to supplement. We

treat a motion to supplement a habeas petition as a motion to amend subject to Fed. R.

Civ. P. 15, and review a district court’s disposition of such a motion for abuse of

discretion. See United States v. Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000).

Although Rule 15 provides that leave to amend should be “freely give[n] . . . when justice

so requires,” Fed. R. Civ. P. 15(a)(2), we conclude that the district court did not abuse its

discretion. Davis sought to add an entirely new claim nearly two and a half years after

his initial petition was filed, and more than a year after the government had filed its

response—little more than a month before the district court ruled on the petition. Davis

describes the claim as based on “new information,” but provides no reason to conclude

that the issue could not have been raised in his original petition. Each of these factors

supports the district court’s decision to deny the motion to supplement. See De Bry v.

Transamerica Corp., 601 F.2d 480, 492 (10th Cir. 1979) (upholding denial of motion to

amend because plaintiffs sought to add new claim after case had been on file for eighteen

months, trial was three months off, and claim could have been developed earlier).

       Construing his pro se appellate filings liberally, see Hall v. Bellmon, 935 F.2d
                                            -3-
1106, 1110 (10th Cir. 1991), Davis also appears to argue that the district court erred in

determining his counsel provided effective assistance during plea negotiations and during

sentencing. To succeed on an ineffective assistance claim, a petitioner “must show that

counsel’s performance was deficient. This requires a showing that counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

       With respect to plea negotiations, the record shows that counsel engaged in

extensive bargaining with the prosecutor. The negotiations broke down because Davis

was unwilling to testify against his codefendants. Davis complains that a defendant is not

required to testify in order to plead guilty, which is correct as between a defendant and

the court. However, the prosecutor apparently insisted on Davis’ testimony as a

condition of dismissing many of the charges against him. And “there is no constitutional

right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”

Weatherford v. Bursey, 429 U.S. 545, 561 (1977). Davis also repeatedly cites to Fed. R.

Crim. P. 11 in arguing counsel was ineffective. It seems that Davis is under the mistaken

belief that Rule 11 allows the district court to order the prosecutor to agree to a specific

plea bargain, or to enter into a plea bargain with a defendant directly. To the contrary,

Rule 11 provides that the court “must not participate in” plea bargain discussions. Fed.

R. Crim. P. 11(c)(1).

       As to sentencing, Davis asserts that his counsel failed to argue various sentencing

issues including offense level, drug quantity calculations, and the 18 U.S.C. § 3553(a)
                                             -4-
factors. But the record belies his assertion. Counsel objected to numerous

recommendations in the presentence report and engaged in vigorous argument over the

course of a two-day sentencing hearing. Specifically, defense counsel objected to

twenty-one of twenty-nine drug quantity calculation recommendations, opposed offense-

level enhancements for obstruction of justice, possession of a firearm, and being a leader

or organizer of the conspiracy, and sought a sentence-level reduction for acceptance of

responsibility. Although counsel was unsuccessful in most of these challenges, they were

able to obtain a below-Guidelines sentence, which the district court explained by

reference to the § 3553(a) factors.

       We agree with the district court that Davis’ counsel provided effective assistance,

and conclude that reasonable jurists could not debate the issue.

                                            III

       We DENY a COA and DISMISS Davis’ appeal. We GRANT Davis’ motion to

proceed in forma pauperis.

                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




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