United States v. William

Filing 920101206

Opinion

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U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT U n i t e d States Court of Appeals T e n t h Circuit FILED D e c e m b e r 6, 2010 E l i s a b e t h A. Shumaker C l e r k of Court U N I T E D STATES OF AMERICA, P l a i n t i f f - Appellee, v. D E R E K WILLIAMS, D e f e n d a n t - Appellant. N o . 10-3115 ( D . C . Nos. 5:09-CV-04136-JAR and 5:06-CR-40132-JAR-1) ( D . Kansas) O R D E R DENYING CERTIFICATE O F APPEALABILITY B e f o r e MURPHY, GORSUCH, and HOLMES, Circuit Judges. Derek Williams, a federal prisoner, seeks to appeal the district court's d e n i a l of his 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. The matter is before this court on Williams's request for a certificate of a p p e a l a b i l i t y ("COA"). 28 U.S.C. 2253(c)(1)(B) (providing no appeal may be t a k e n from a "final order in a proceeding under section 2255" unless the movant f i r s t obtains a COA). Because Williams has not "made a substantial showing of t h e denial of a constitutional right," this court denies his request for a COA and d i s m i s s e s this appeal. Id. 2253(c)(2). Williams was charged in a multi-count indictment with crimes relating to t h e distribution of crack cocaine. Williams entered into a written plea agreement w i t h the Government wherein he agreed to plead guilty to the charge of c o n s p i r a c y to possess with the intent to distribute five kilograms or more of c o c a i n e , in violation of 21 U.S.C. 846. The Government agreed to dismiss the r e ma i n i n g charges and not file any additional charges against Williams arising out o f the facts forming the basis for the indictment. The written plea agreement also c o n t a i n e d a waiver of Williams's right to directly appeal or collaterally attack his c o n v i c t i o n and sentence. Notwithstanding the waiver, Williams filed the instant 2255 motion r a i s i n g five claims of ineffective assistance of counsel, including a claim he r e c e i v e d ineffective assistance of counsel in connection with the negotiation of t h e plea agreement. The Government sought to enforce the waiver and filed a mo t i o n to dismiss Williams's 2255 motion. The district court concluded (1) f o u r of Williams's claims fell within the scope of the appeal waiver and (2) W i l l i a ms knowingly and voluntarily entered into the plea agreement and waiver. See United States v. Hahn, 359 F.3d 1315, 1325-27 (10th Cir. 2004). The court f u r t h e r concluded that enforcing the waiver would not result in a miscarriage of j u s t i c e , rejecting Williams's fifth claim--that the waiver was rendered invalid by t h e ineffective assistance of counsel in connection with its negotiation. See id. at 1 3 2 7 ; United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Accordingly, the district court enforced the waiver and denied Williams's 2255 mo t i o n . -2- I n his appellate brief, Williams challenges the denial of his 2255 motion. This court cannot reach the merits of Williams's appeal unless we first grant him a COA. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a C O A , Williams must make "a substantial showing of the denial of a constitutional r i g h t . " 28 U.S.C. 2253(c)(2). To make the requisite showing, he must d e mo n s t r a t e "that reasonable jurists could debate whether (or, for that matter, a g r e e that) the petition should have been resolved in a different manner or that the i s s u e s presented were adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether Williams h a s satisfied his burden, this court undertakes "a preliminary, though not d e f i n i t i v e , consideration of the [legal] framework" applicable to each of his c l a i ms . Id. at 338. Although Williams need not demonstrate his appeal will s u c c e e d to be entitled to a COA, he must "prove something more than the absence o f frivolity or the existence of mere good faith." Id. Having undertaken a review of Williams's application for a COA and a p p e l l a t e filings, the district court's order, and the entire record on appeal p u r s u a n t to the framework set out by the Supreme Court in Miller-El, this court c o n c l u d e s he is not entitled to a COA. The district court's resolution of W i l l i a ms ' s 2255 motion is not reasonably subject to debate and the issues he s e e k s to raise on appeal are not adequate to deserve further proceedings. -3- A c c o r d i n g l y , this court denies Williams's request for a COA and dismisses this appeal. E N T E R E D FOR THE COURT M i c h a e l R. Murphy C i r c u i t Judge -4-

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