FILED

United States Court of Appeals

Tenth Circuit

October 31, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 07-5098

v. (N. D. Oklahoma)

WALTER BROWN EWING,

Defendant - Appellant.

(D.C. No. 06-CV-0597-CVE-PJC)

(D.C. No. 05-CR-068-04-CVE)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

 Walter Brown Ewing, proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s denial of his motion for relief

under 28 U.S.C. § 2255. See id. § 2253(c)(1)(B) (requiring COA to appeal denial

of § 2255 motion). Because no reasonable jurist could conclude that Mr. Ewing’s

§ 2255 motion should have been resolved in a different manner, see Slack v.

McDaniel, 529 U.S. 473, 485 (2000), we deny his application for a COA and

dismiss this appeal.

On June 17, 2005, Mr. Ewing pleaded guilty in the United States District

Court for the Northern District of Oklahoma to charges of conspiracy, see

18 U.S.C. § 371, and possession of stolen mail, see id. § 1708. He had entered

into a plea agreement that waived his right to a direct appeal (except to challenge
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a sentence in excess of the statutory maximum) and “waive[d] the right to

collaterally attack the conviction or sentence pursuant to 28 U.S.C. § 2255, except

for claims based on ineffective assistance of counsel which challenge the validity

of the guilty plea or this waiver.” R. Vol. I, Doc. 80 at 12. The court sentenced

him to a prison term of 60 months for each offense, the terms to be served

consecutively, and ordered him to pay restitution of $111,540.81 and a special

monetary assessment of $200.00.

On October 26, 2006, Mr. Ewing filed a motion for relief under 28 U.S.C.

§ 2255. He alleged that he had received ineffective assistance of counsel because

his counsel had (1) failed to appeal his sentence for being in excess of the

statutory maximum; (2) “failed to note and argue that the sentence of 120 months

confinement violated due process because the sentence was greater than the

‘statutory maximum’ allowable sentence for the offense(s) of conviction,”

R. Vol. I, Doc. 199 at 3; and (3) failed to appeal the imposition of consecutive

terms of imprisonment. The district court enforced Mr. Ewing’s plea-agreement

waiver and denied his § 2255 motion. It also denied his application for a COA,

but permitted him to proceed in forma pauperis.

The district court ruled that Mr. Ewing’s waiver was enforceable under

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). Under Hahn an appellate

waiver is enforceable if “(1) . . . the disputed appeal falls within the scope of the

waiver of appellate rights; (2) . . . the defendant knowingly and voluntarily
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waived his appellate rights; and (3) . . . enforcing the waiver would [not] result in

a miscarriage of justice.” Id. at 1325. The third condition is met unless “[1] . . .

the district court relied on an impermissible factor such as race, [2] . . .

ineffective assistance of counsel in connection with the negotiation of the waiver

renders the waiver invalid, [3] . . . the sentence exceeds the statutory maximum,

or [4] . . . the waiver is otherwise unlawful..” A waiver is “unlawful” if the error

seriously affects the “‘fairness, integrity or public reputation of the judicial

proceedings.’” Id. at 1327 (quoting United States v. Olano, 507 U.S. 725, 732

(1993)). We apply the same analysis to waivers of collateral review. See, e.g.,

United States v. Wales, No. 05-3445, 2006 WL 950655, at *2 (10th Cir. Apr. 13,

2006) (unpublished).

With respect to the first condition, the district court pointed out that

Mr. Ewing waived all postconviction rights except for challenges to the validity

of his plea or waiver. Because Mr. Ewing’s ineffective-assistance-of-counsel

claims in his § 2255 motion did not involve the validity of his plea or waiver, the

court determined that his challenges fell “squarely within” the scope of his

collateral-attack waiver. R. Vol I, Doc. 215 at 8.

Regarding the second condition, the district court observed that Mr. Ewing

had signed the plea agreement and the petition to enter a plea agreement, both of

which specifically acknowledged that he was entering the agreement knowingly

and voluntarily. The court also pointed out that it had conducted a thorough plea
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colloquy under Federal Rule of Criminal Procedure 11, during which Mr. Ewing

acknowledged that his postconviction waiver was knowing and voluntary.

As for the third condition, the district court pointed out that Mr. Ewing had

not contended that race had ever been a factor; his ineffective-assistance-ofcounsel claims did not relate to the negotiation of the waiver; his sentence did not

exceed, although it equaled, the statutory maximum (indeed, the plea agreement

specified that the maximum sentence he could receive was ten years’

imprisonment); and there had been no error that affected his substantial rights.

No reasonable jurist could debate the district court’s ruling. Therefore, we

DENY Mr. Ewing’s application for a COA and DISMISS this appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge