UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. JASON TODD DAVIS, Defendant–Appellant. No. 11-6020 (D.C. Nos. 5:08-CV-00577-M and 5:01-CR-00181-M-2) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , GORSUCH , and EBEL , Circuit Judges.

Jason Todd Davis, a federal prisoner pr oceeding pro se, seeks a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 habeas petition. We deny a COA and dismiss the appeal.
I Davis was convicted in federal court on twenty-five counts related to a phencyclidine (“PCP”) distribu tion conspiracy. He was initially sentenced to life in

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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

### June 9, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - prison, a sentence we affirmed on direct appeal. See United States v. Ward , 96 F. App’x 615 (10th Cir. 2004) (unpublished). On fu rther review, the Supreme Court vacated Davis’ life sentence for reconsidera tion under United States v. Booker , 543 U.S. 220 (2005). See Ward v. United States , 543 U.S. 1103, 1116 (200 5). On remand to the district court, Davis was sent enced below his advisory Guid elines range to 480 months’ imprisonment. We again entertained an appeal and affirmed. See United States v. Davis , 213 F. App’x 725 (10th Cir. 2007) (unpublished ). The Supreme Court denied certiorari.
See Davis v. United States , 550 U.S. 976 (2007). Having exhausted direct review , Davis filed a § 2255 petition in the district court. Davis asserted four claims of ineffective a ssistance of counsel, alleging: (1) pre-trial counsel failed to raise Fed. R. Crim. P. 11 at the arraignment; (2) trial counsel failed to raise Rule 11; (3) trial counsel failed to challenge various senten cing enhancements and calculations; and (4) trial counsel did not demand the district court state specific reasons for the sentence imposed. More than two years after filing his original petition and shortly before the district court was set to rule, Davis filed a motion to supplement, seeking to add a new claim of ineffective as sistance based on counsel’s failure to raise Guidelines Amendment 484. The district court denied the motion to supplement the pleadings and rejected Davis’ ineffectiveness claims.
II A petitioner must first obtain a COA to appeal the denial of a § 2255 petition. 28 U.S.C. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a- 3 - substantial showing of the denial of a cons titutional right,” § 2253(c)(2), which requires a petitioner to demonstrate “that reasonable ju rists 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 deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (20 00) (quotations omitted). Davis argues that the district court erre d in denying his motion to supplement. We treat a motion to supplement a habeas petition as a motion to amend subject to Fed. R. Civ. P. 15, and review a district court’ s disposition of such a motion for abuse of discretion. See United States v. Espinoza-Saenz , 235 F.3d 501, 503 (10th Cir. 2000). Although Rule 15 provides that leave to amend should be “fre ely give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), we conc lude that the district court did not abuse its discretion. Davis sought to add an entirely new claim nearly two and a half years after his initial petition was filed, and more than a year after the government had filed its response—little more than a month before the di strict court ruled on the petition. Davis describes the claim as based on “new inform ation,” but provides no reason to conclude that the issue could not have been raised in his original petition. Each of these factors supports the district court’s decision to deny the motion to supplement. See De Bry v. Transamerica Corp. , 601 F.2d 480, 492 (10t h Cir. 1979) (upholding denial of motion to amend because plaintiffs sought to add new cl aim after case had been on file for eighteen months, trial was three months off, and cl aim could have been developed earlier). Construing his pro se appe llate filings liberally, see Hall v. Bellmon , 935 F.2d- 4 - 1106, 1110 (10th Cir. 1991), Davis also appears to argue that the district court erred in determining his counsel provided effective a ssistance during plea negotiations and during sentencing. To succeed on an ineffective assistance claim, a petitioner “must show that counsel’s performance was deficient. This re quires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington , 466 U.S. 668, 687 (1984). With respect to plea negotiations, the record shows that counsel engaged in extensive bargaining with th e prosecutor. The negotiations broke down because Davis was unwilling to testify against his codefendants. Davis complains that a defendant is not required to testify in order to plead guilty, which is correct as between a defendant and the court. However, the prosecutor appare ntly insisted on Davis’ testimony as a condition of dismissing many of the charges against him. A nd “there is no constitutional right to plea bargain; the pr osecutor need not do so if he prefers to go to trial.” Weatherford v. Bursey , 429 U.S. 545, 561 (1977). Davis also repeatedly cites to Fed. R. Crim. P. 11 in arguing counsel was ineffective. It seems th at Davis is under the mistaken belief that Rule 11 allows the district court to order the prosecutor to agree to a specific plea bargain, or to enter into a plea bargain with a defendant direc tly. To the contrary, Rule 11 provides that the cour t “must not participate in” plea bargain discussions. Fed. R. Crim. P. 11(c)(1). As to sentencing, Davis asserts that his counsel failed to argue various sentencing issues including offense level, drug quantity calculations, and th e 18 U.S.C. § 3553(a)- 5 - factors. But the record belies his asse rtion. Counsel objected to numerous recommendations in the presentence report an d engaged in vigorous argument over the course of a two-day sentencing hearing. Specifically, defense counsel objected to twenty-one of twenty-nine drug quantity calculation reco mmendations, opposed offenselevel enhancements for obstructio n of justice, possession of a firearm, and being a leader or organizer of the conspiracy, and sought a sentence-level reduction for acceptance of responsibility. Although counsel was unsuccessful in most of these challenges, they were able to obtain a below-Guid elines sentence, which the district court explained by reference to the § 3553(a) factors. We agree with the district court that Davi s’ counsel provided effective assistance, and conclude that reasonable jurist s could not debate the issue.
III
We DENY a COA and DISMISS Davis’ appeal. We GRANT Davis’ motion to proceed in forma pauperis. Entered for the Court

Carlos F. Lucero Circuit Judge