UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DANIEL LESLIE MOONEYHAM, Defendant-Appellant. No. 14-6058 (D.C. Nos. 5:13-CV-00398-D and 5:11-CR-00254-D-1)

(W.D. Oklahoma)

ORDER

Before KELLY , ANDERSON , and BACHARACH , Circuit Judges.

Mr. Daniel Mooneyham pleaded guilty to one count of receiving child pornography (18 U.S.C. § 2252(a )(2)) and obtained a 20-year sent ence. R. vol. 1, at 20; R. vol. 3, at 14-15, 108-09. Mr. Mooneyham waived his right to appeal or collaterally attack his guilty plea and sentence as long as the sentence did not exceed the sentencing guideline range as calculated by the court. R. vol. 1, at 25. Despite waiving the right to collateral review, Mr. Mooneyham moved to vaca te the sentence under 28 U.S.C. § 2255 (2012). The district court enforced the waiv er on some of the claims and denied the § 2255 motion. R. vol. 1, at 287. Mr. Mo oneyham asks for a certificate of appealability FILED United States Court of Appeals Tenth Circuit 

### September 12, 2014
Elisabeth A. Shumaker Clerk of Court2 and an order allowing leave to proceed in forma pauperis. We decline to grant a certificate of appealability, but grant l eave to proceed in forma pauperis.
I. Standard for a Certificate of Appealability A certificate of appealability is nece ssary for Mr. Mooneyham to appeal. MillerEl v. Cockrell , 537 U.S. 322, 335-36 (2003); United States v. Parker , 720 F.3d 781, 785 (10th Cir. 2013). We will issue a certificate onl y when the applicant makes “a substantial showing of the denial of a constitutional ri ght.” 28 U.S.C. § 2253(c)(2) (2012). An applicant must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition s hould have been reso lved in a different manner or that the issues presented were ‘adequate to dese rve encouragement to proceed further.’” Slack v.
McDaniel , 529 U.S. 473, 48 4 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983), superseded by statute , Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as recognized in Slack , 529 U.S. at 483-84).
II. The Issues On appeal, Mr. Mooneyham contends that his counsel was ineffective in three
ways:

● in negotiating and explaining the plea, 1

● in providing representation at sentencing, and

1 Although Mr. Mooneyham asserted four grou nds for relief in his § 2255 motion, the district court determined that two of th e grounds involved ineffective assistance of counsel in connection with en try into the plea agreement a nd waiver of collateral and appellate challenges. R. vol. 1, at 192-97 . On appeal, Mr. Mooneyham has consolidated these grounds into one claim (that counsel was ineffectiv e in negotiating and explaining the plea agreement). Appellant Br. at 2-5.3 ● in failing to file an appeal. Appellant Br. at 2-8. The district court ru led that the waiver of a collateral challenge barred consideration of the second and third contentions and rejected the first contention on the merits. R. vol. 1, at 292, 297.
III. Ineffectiveness of Counsel in Negot iating and Explaining the Plea Mr. Mooneyham alleges that his counse l was ineffective in negotiating and explaining the plea by:

● telling Mr. Mooneyham to plead guilty because he would receive a five- year sentence,

● failing to tell him that supervised release conditions could be imposed,

● failing to meet and communicate,

● waiting until the day before the plea hearing to present the proposed agreement,

● failing to explain all the te rms of the agreement, and

● spending less than an hour with Mr. Mooneyham prior to the plea.
Id. at 293. Based on these allegations, M r. Mooneyham claims that his counsel was ineffective in negotiating and explaining the pl ea. Appellant Br. at 4. We disagree. A. Ineffective Assistance of Counsel Standard We apply the two-pronged test stated in Strickland v. Washington , 466 U.S. 668 (1984). Hill v. Lockhart , 474 U.S. 52, 57 (1985). Under Strickland , Mr. Mooneyham must show: (1) counsel’s defi ciency, and (2) prejudice. Strickland, 466 U.S. at 687-88. Because we find it “easier to dispose of [Mr. Mooneyham’s] ineffe ctiveness claim” on the prejudice prong, we need not anal yze whether counsel was deficient. Id. at 697.4 B. Prejudice The prejudice prong requires Mr. Moone yham to demonstrate a “reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill , 474 U.S. at 59. A “‘reasonable probability is a probability sufficient to undermine confidence in the outcome. That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.’” Heard v. Addison , 728 F.3d 1170, 1176 ( 10th Cir. 2013) (quoting Cullen v. Pinholster , __U.S.__, 131 S. Ct. 1388, 1403 (2011)). Mr. Mooneyham asserted in the district cour t that he would have rejected the plea offer “but for counsel’s error.” R. vol. 1, at 267. This assertion is inadequate under the circumstances. See Heard , 728 F.3d at 1184 (holding that a “‘mere allegation that [the petitioner] would have insisted on trial but for his co unsel’s errors ... is ultimately insufficient’” to ju stify relief) (quoting Miller v. Champion , 262 F.3d 1066, 1072 (10th Cir. 2001) (alteration in original)). In add ition, Mr. Mooneyham had to identify facts indicating that “a decision to reject the plea bargain would have been rational under the circumstances.” Id. (quoting Padilla v. Kentucky , 559 U.S. 356, 372 (2010)) (emphasis added). Mr. Mooneyham cannot make that showing. He was charged not only with receiving child pornography, but also with enticing a child to engage in sexually explicit conduct under 18 U.S.C. § 2251(a). R. vol. 2, at 9. Because of Mr. Mooneyham’s prior criminal history, the charge carried a 25- year mandatory minimum sentence with a maximum sentence of 40 years. See 18 U.S.C. §§ 2251(e) (2006) (15 to 30 years in5 prison), 2260A (additional 10-year consecut ive sentence for sex offenders). If Mr. Mooneyham had gone to trial, he would have faced the poten tial for a harsher sentence. And, had he gone to trial, he likely would have been convicted be cause the evidence of guilt was strong. R. vol. 1, at 294; R. vol. 2, at 48-55; see Miller v. Champion , 262 F.3d 1066, 1075 (10th Cir. 2001) (affirming the distri ct court’s considerati on of the strength of the evidence against the defenda nt in connection with the pr ejudice prong). Because Mr. Mooneyham has not identified facts indicati ng that a rational defendant might have preferred trial over the plea offer, he cannot sh ow prejudice; thus, we reject the claim of ineffective assistance of counsel.
IV. Ineffective Assistance at the Sentencing and in the Failure to File an Appeal Mr. Mooneyham argues that his counsel was ineffective at the sentencing and in failing to file a notice of appeal as directed . Appellant Br. at 5-8. These claims are precluded by the waiver of collateral challenges. A. The Waiver In the plea agreement, Mr. Mooneyham waived his rights to “[a]ppeal or collaterally challenge his guilty plea, sentence . . . imposed, and any other aspect of his conviction” as long as the sentence fell within or below the advisory sentencing guidelines determined by the court to apply. R. vol. 1, at 25. The waiver is enforceable if: (1) the ineffective assi stance claims fall wi thin the scope of the waiver, (2) the defendant knowingly and voluntarily waived his right to collateral review, and (3) enforcement of the waiver would not re sult in a miscarriage of justice. United States v.6 Hahn , 359 F.3d 1315, 1325 (1 0th Cir. 2004) (en banc); United States v. Parker , 720 F.3d 781, 787 (10th Cir. 2013).
B. The Scope of the Waiver The waiver covers the ineffective-assist ance claims regarding the sentencing and the failure to file an appeal. See United States v. Cockerham , 237 F.3d 1179, 1188 (10th Cir. 2001) (because the defendant’s claim of ineffec tive assistance at sentencing did not relate to the validity of the plea or the wa iver, the right to cha llenge the sentence was waived); United States v. Viera , 674 F.3d 1214, 1217-18 (10th Cir. 2012) (holding that a failure to file an appeal is within the scope of the waiver because the failure “does not undermine the validity of the plea or waiver ”). The sentence fell below the guideline range, and Mr. Mooneyham’s challenges involvi ng the sentence and failure to appeal cannot reasonably be construed as challenges to the validity of the plea or the waiver of rights to challenge the plea. See Viera , 674 F.3d at 1218; Cockerham , 237 F.3d at 1188. We hold that Mr. Mooneyham’s challenge s fell within the sc ope of the waiver. C. “Knowing and Voluntary” Second, Mr. Mooneyham knowingly and volunt arily waived his right to collateral review. In reaching this conclusion, we focu s on: (1) “whether the language of the plea agreement states that the de fendant entered the agreement knowingly and voluntarily[,]” and (2) the presence of “an adequate Federal Rule of Criminal Procedure 11 colloquy.”
Hahn , 359 F.3d at 1325. The pl ea agreement states that the waiver was knowing and voluntary, and Mr. Mooneyham acknowledged th at he had discussed the terms with his attorney and understood them. R. vol. 1, at 25, 27; R. vol. 3, at 17. Because Mr.7 Mooneyham presents no evidence challenging th e validity of the waiver, we assume that it was knowing and voluntary. See Hahn , 359 F.3d at 1329. D. “Miscarriage of Justice” Enforcing Mr. Mooneyham’s collateral a ttack waiver will not result in a miscarriage of justice. Enforcement of a waiver of collateral cha llenges results in a mi scarriage of justice only: “‘(1) where the district court relied on an impermissible factor such as race, (2) where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, (3) where the sent ence exceeds the statutory maximum, or (4) where the waiver is otherwise unlawful.’” Id. at 1327 (quoting United States v. Elliott , 264 F.3d 1171, 1173 ( 10th Cir. 2001)). A waiver is ot herwise unlawful only when it seriously affects the “‘fairness, integrity or public reputation of j udicial proceedings.’”
Id. (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). Mr. Mooneyham alleges ineffective assistan ce of counsel in connection with the negotiation of the plea agreemen t. But we have concluded that defense counsel was not deficient in negotiating the plea agreement. Because Mr. Mooneyham has not otherwise alleged a basis for a miscarriage of justic e, we conclude that the waiver bars consideration of the ineffective-assistance cl aims regarding the sentencing and failure to file an appeal.8 V. Leave to Proceed in Forma Pauperis Mr. Mooneyham cannot afford the filing fee; thus, we grant leave to proceed in forma pauperis.
VI. Disposition We deny the request for a certificate of appealability and grant leave to proceed in forma pauperis. Entered for the Court

Robert E. Bacharach Circuit Judge