F I LED

United States Court of Appeals

Tenth Circuit

June 13, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-5099

v. N. Dist. of Oklahoma

KATHRYN HELTZEL,

Defendant - Appellant.

(D.C. No. 04-CV-00944-HDC

and 98-CR-00111-HDC-2)

ORDER

Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.

On January 28, 2002, Kathryn Heltzel pleaded guilty to possession with

intent to distribute approximately five pounds of methamphetamine, in violation

of 21 U.S.C. § 841(a)(1). She was sentenced to 180 months’ imprisonment, five

years of supervised release, and a fine of $4,000. She appealed her conviction to

this court, and we affirmed. On December 20, 2004, she filed a timely habeas

motion under 28 U.S.C. § 2255 in the United States District Court for the

Northern District of Oklahoma. The district court denied her motion, and denied

a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring COA). 

Ms. Heltzel now seeks a COA from this court. We deny a COA and dismiss the

appeal. 
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I. BACKGROUND

In her original § 2255 motion Ms. Heltzel raised claims of ineffective

assistance of counsel, illegal search and seizure, false arrest, and breach of her

plea agreement. On January 13, 2005, she filed a motion to amend her § 2255

motion, raising a claim under Blakely v. Washington, 542 U.S. 296 (2004), and

attaching numerous exhibits, including transcripts of her change-of-plea hearing

and sentencing hearing. The district court granted her motion to amend. 

The government countered Ms. Heltzel’s allegations of ineffective

assistance with an affidavit from her attorney. The affidavit stated that she had

met with Ms. Heltzel 25 times, that she had discussed with Ms. Heltzel the

sentence she faced, and that, in her opinion, Ms. Heltzel had entered the plea

voluntarily and knowingly. The government also submitted a copy of

Ms. Heltzel’s petition to enter a plea of guilty, which stated, “I believe my

attorney has done all that anyone could do to counsel and assist me, AND I AM

SATISFIED WITH THE ADVICE AND HELP SHE WAS GIVEN ME.” R. Doc.

97 Attach. 1 at 4. In addition, the government pointed to the transcript of

Ms. Heltzel’s change-of-plea hearing, which showed that she understood the plea

agreement and the rights she was giving up. Ms. Heltzel filed no response. 

The district court denied the claims other than ineffective assistance of

counsel because Ms. Heltzel had not raised them on direct appeal. The court

found that her failure to raise the issues on direct appeal could not be excused
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because Ms. Heltzel had “not stated any facts or presented any evidence to

support any of the claims she has raised,” District Court Order of March 17, 2005

(hereinafter the March Order) at 2, and therefore had not shown cause and

prejudice or a fundamental miscarriage of justice. 

The district court also denied the claim under Blakely (and assumed it also

relied on United States v. Booker, 543 U.S. 220 (2005), decided the day before

Ms. Heltzel filed her motion to amend), because Ms. Heltzel’s sentence was final

before those Supreme Court decisions were handed down.

As for Ms. Heltzel’s numerous allegations of ineffective assistance of

counsel, the district court noted that as part of her plea agreement, Ms. Heltzel

had waived her right to appeal and her right to attack her sentence collaterally. 

The court stated that under United States v. Cockerham, 237 F.3d 1179, 1183

(10th Cir. 2001), this waiver was enforceable except as to ineffective-assistanceof-counsel claims relating to the validity of her plea and the waiver itself. 

Because Ms. Heltzel did not challenge the validity of her waiver, the district court

found that her only cognizable claim was an ineffectiveness claim relating to the

validity of her guilty plea—that as a result of the inactions of her attorney she did

not enter into the plea knowingly or voluntarily. The court listed the following as

Ms. Heltzel’s allegations in this regard: 

(1) She was coerced into entering the plea agreement[;] (2) Counsel

should have safeguarded her during negotiations with the government

because of her mental illness[;] (3) Counsel failed to inform her of
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her rights[;] (4) Counsel failed to inform her of her right to make

objections to the plea agreement[;] (5) Counsel failed to explain the

plea agreement or give her sufficient time to read and understand it[;]

(6) Counsel failed to safeguard her during the plea and sentencing

hearing as an active advocate[; and] (7) She never saw the

presentence report until counsel informed her after sentencing that

she was no longer her attorney.

March Order at 3. Noting the absence of evidence supporting Ms. Heltzel’s claim

of ineffective assistance of counsel, the court denied the claim. 

II. DISCUSSION

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but she must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of a case, a reasonable jurist
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could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id. 

On appeal Ms. Heltzel raises a number of claims, some apparently not

raised below. In her plea agreement, however, she waived her right to raise a

collateral attack on her conviction, except for claims of ineffective assistance of

counsel. Therefore, the only claims we need consider are ineffectiveness claims,

unless she can successfully challenge the waiver or the plea agreement as a

whole. But the evidence referenced in the government’s response to

Ms. Heltzel’s § 2255 motion establishes the lack of merit to her allegations of

ineffective assistance. And on appeal she does not point to any further evidence

supporting her claims, nor does she contend that she could have provided further

evidence in district court if given the opportunity. All she adds to her allegations

in district court are copies of a series of letters from an attorney in the Federal

Public Defender’s office informing her of the consequences of pursuing her direct

appeal in this court. And even were we to consider this evidence, what it shows

is not ineffective representation but, on the contrary, very conscientious and

capable efforts by the attorney. Accordingly, no reasonable jurist could conclude

that the district court erred in denying relief. 
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We DENY a COA and DISMISS the appeal. 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge