UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARCAS MCGOWAN, Defendant - Appellant. No. 18-3224 (D.C. Nos. 2:17-CV-02697-JAR & 2:15-CR-20007-JAR-1) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before LUCERO , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Marcas McGowan, a federal pris oner proceeding pro se, seeks a c ertificate of appealability (“COA”) to appeal t he district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss the appeal.
I McGowan pled guilty to kidnappi ng resulting in death in violat ion of 18 U.S.C. § 1201(a)(1) and 1201(g) , and discharging a firearm duri ng a crime of violence in violation of § 924(c )(1)(A). In his written plea a greement, McGowan admitted that he took the five-y ear-old child of his girlfriend in his car. Following a lengthy police chase, McGowan cra shed the car into a constructi on barricade. He

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 16, 2019
Elisabeth A. Shumaker Clerk of Court2 exited the vehicle with a firear m pointed at the pursuing offic ers, and was shot when he refused to lower the firearm . Officers discovered the body of the child in the passenger seat, with a gunshot entry at the back of her head. They found no evidence of bullets entering the vehicle, and an investigation found in the car a bulle t that had killed the child and concluded th at bullet was fired by McGowan ’s firearm. The plea agreement recommended a sentence of life imprisonment, the stat utory minimum, on the kidnapping charge. At his plea hearing, McGowan a ttested that he had gone over th e written plea agreement with counsel, understood the terms of the plea agreem ent, entered into the plea agreement willingly and abse nt coercion, recognized that h e would likely receive a life sentenc e, and accepted as tru e the factual basis for the plea. McGowan also acknowledged that he waived various rights by entering a g uilty plea. He was sentenced to life plus 120 months. McGowan filed a § 2255 motion cl aiming his counsel was ineffec tive for advising him to plead guilty. The district court denied his § 2255 motion and declined to grant a COA. McGowan now requests a COA from this court.
II A prisoner may not appeal the den ial of habeas relief under § 2 255 without a COA. § 2253(c)(1)(B). We will i ssue a COA “only if the applic ant has made a substantial showing of the den ial of a constitutional right.” § 2253(c)(2). This standard requires McGowan to “s how[] that reasonable jurists co uld debate whether . . . the petition should have been r esolved in a different manne r or that the issues3 presented were adequate to des erve encouragement to proceed fur ther.” Slack v. McDaniel, 529 U.S. 473, 484 (20 00) (quotations omitted). To prevail on an ineffective assi stance claim, McGowan must dem onstrate both that “counsel made errors s o serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient performance prejudiced the defens e.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show that th ere is a reasonable probability that, but for counsel ’s unprofessional errors, the result of the proceeding would have been different.” I d. at 694. Because McGowan is ap pearing pro se, we liberally construe his pleadings . United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). McGowan argues that counsel was ineffective for failing to inve stigate his factual claims about the circums tances of the kidnapping. Howe ver, those claims are contradicted by the admissions McG owan made before the district court. McGowan counters that he did not knowing ly and voluntarily accept the p lea agreement because he disputed the underlying facts. In support of this assertion , McGowan notes that he conferred with counsel before ad mitting important facts at the plea hearing. McGowan “fails to overcome the pr esumption he entered his plea knowingly.” United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir. 2 014). In the agreement itself and during the plea hearing, McGowan stated th at he entered the plea agreement voluntarily and w ithout pressure or coercion. M cGowan acknowledged discussing the agreem ent with his attorney and sta ted that he was4 satisfied with counsel’s perform ance. As part of a thorough pl ea colloquy, McGowan also testified that he understood the facts underpinning the ch arges, and acknowledged that the government h ad evidence su fficient to pro ve the requisite factual allegations. These “sole mn declarations made in open c ourt carry a strong presumption of verity.” Id. ( quotation omitte d). Although McG owan contends that counsel coerced him into pleadi ng guilty by advising him that h e could face the death penalty should he go to trial, “[a]dvice—even strong urging by counsel does not invalidate a guilty pl ea.” Fields v. Gibs on, 277 F.3d 1203, 12 14 (10th Cir. 2002) (quotation omitted). In his request for a COA, McGowan argues for the first time tha t counsel was ineffective for failing to inves tigate McGowan’s performance of parental duties towards the kidnapped child because the statute contains an exc eption for parents. 1 See § 1201(a). “Because this claim was not prese nted to the district court, we decline to consider it on appeal . . . .” Dockins v. Hines, 374 F.3d 9 35, 940 (10th Cir. 2004). McGowan’s claim is unavailing in any event. During the plea co lloquy, McGowan admitted that he was “not a par ent, grandparent, brother, siste r, aunt, uncle, or individual having legal custody of the victim.” Finally, McGowan contends the d istrict court should have held an evidentiary hearing. We review the denial o f an evidentiary hearing for ab use of discretion.

1 Although McGown briefly referen ced his performance of such dut ies in his filings below, he did not argue t hat counsel was ineffective fo r failing to investigate these alleged facts.5 United States v. Clingman, 288 F. 3d 1183, 1187 n.4 (10th Cir. 2 002). Because “the motion and the files and records of the case conclusively show that the prisoner is [not] entitled to . . . relief,” a hearing was not required. § 2255(b).
III For the foregoing reasons, a COA is DENIED and the appeal is DISMISSED

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Entered for the Court

Carlos F. Lucero Circuit Judge