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 proceeding 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”) distribution 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 This order is not binding precedent except under the doctrines of law of the case, 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
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prison, a sentence we affirmed on direct appeal. See United States v. Ward, 96 F. App’x 

615 (10th Cir. 2004) (unpublished). On further review, the Supreme Court vacated 

Davis’ life sentence for reconsideration under United States v. Booker, 543 U.S. 220 

(2005). See Ward v. United States, 543 U.S. 1103, 1116 (2005). On remand to the 

district court, Davis was sentenced below his advisory Guidelines 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213 F. App’x 725 (10th Cir. 2007) (unpublished).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 assistance 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 sentencing 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 assistance 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 
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substantial showing of the denial of a constitutional right,” § 2253(c)(2), which requires a 

petitioner to demonstrate “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) (quotations omitted). 

Davis argues that the district court erred 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 “freely give[n] . . . when justice 

so requires,” Fed. R. Civ. P. 15(a)(2), we conclude 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 district court ruled on the petition. Davis 

describes the claim as based on “new information,” 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 (10th Cir. 1979) (upholding denial of motion to 

amend because plaintiffs sought to add new claim after case had been on file for eighteen 

months, trial was three months off, and claim could have been developed earlier). 

Construing his pro se appellate filings liberally, see Hall v. Bellmon, 935 F.2d 
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1106, 1110 (10th Cir. 1991), Davis also appears to argue that the district court erred in 

determining his counsel provided effective assistance during plea negotiations and during 

sentencing. To succeed on an ineffective assistance claim, a petitioner “must show that 

counsel’s performance was deficient. This requires 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 the 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 apparently insisted on Davis’ testimony as a 

condition of dismissing many of the charges against him. And “there is no constitutional 

right to plea bargain; the prosecutor 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 that 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 directly. To the contrary, 

Rule 11 provides that the court “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 the 18 U.S.C. § 3553(a) 
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factors. But the record belies his assertion. Counsel objected to numerous 

recommendations in the presentence report and 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 recommendations, opposed offenselevel enhancements for obstruction 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-Guidelines sentence, which the district court explained by 

reference to the § 3553(a) factors. 

We agree with the district court that Davis’ counsel provided effective assistance, 

and conclude that reasonable jurists 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