This order is not binding precedent except under the doctrines of law of *

the case, res judicata and collateral estoppel.

F I LED

United States Court of Appeals

Tenth Circuit

January 19, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY D. TELLINGHUISEN,

Defendant-Appellant.

No. 06-3266

(D. Kan.)

(D.C. No. 06-CV-3063-JTM)

ORDER*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Jeffrey D. Tellinghuisen, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Tellinghuisen has failed

to make “a substantial showing of the denial of a constitutional right,” we deny

his request for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2). 
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Background

Mr. Tellinghuisen pleaded guilty to possession of a firearm by a restricted

person in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). This was just one count

in an eighteen-count indictment; the government dismissed the other seventeen

counts in exchange for his guilty plea. His plea agreement included this appeal

waiver:

Defendant knowingly and voluntarily waives any right to appeal or

collaterally attack any matter in connection with this prosecution,

conviction and sentence. The defendant is aware that Title 18,

U.S.C. § 3742 affords a defendant the right to appeal the conviction

and sentence imposed. By entering into this agreement, the

defendant knowingly waives any right to appeal the conviction or a

sentence imposed which is within the guideline range determined

appropriate by the court. The defendant also waives any right to

challenge a sentence or otherwise attempt to modify or change his

sentence or manner in which it was determined in any collateral

attack, including, but not limited to, a motion brought under Title 28,

U.S.C. § 2255 [except as limited by United States v. Cockerham, 237

F.3d 1179, 1187 (10th Cir. 2001)] and a motion brought under Title

18, U.S.C. § 3582(c)(2). In other words, the defendant waives the

right to appeal the sentence imposed in this case except to the extent,

if any, the court departs upwards from the applicable sentencing

guideline range determined by the court. However, if the United

States authorizes its right to appeal the sentence imposed as

authorized by Title 18, U.S.C. § 3742(b), the defendant is released

from this waiver and may appeal the sentence received as authorized

by Title 18, U.S.C. § 3742(a).

R. Vol. I, Doc. 23, at 3 (brackets in original). The district court conducted a

thorough plea colloquy before accepting Mr. Tellinghuisen’s guilty plea. It

explained each provision in depth and gave particular attention to the appeal

waiver. The court accepted Mr. Tellinghuisen’s guilty plea only after satisfying
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itself that the plea was knowing and voluntary. The court then sentenced him to

120 months imprisonment. 

Mr. Tellinghuisen did not appeal his sentence. Instead, he filed this habeas

petition under § 2255, alleging that he received ineffective assistance of counsel. 

The district court denied his petition, ruling that the appeal waiver in his plea

agreement barred it as a collateral attack on his sentence. 

Discussion

The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make such

a showing, a petitioner must demonstrate that “reasonable jurists could debate

whether . . . 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, 483–84 (2000) (internal quotation marks

omitted).

Even under the liberal standard by which we judge a pro se litigant’s

pleadings, see Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.

2003), Mr. Tellinghuisen fails to convince us that the district court should have

resolved his petition differently. The district court employed the correct threepart test we announced in United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.
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2004) (en banc), to determine whether the appellate waiver in Mr. Tellinghuisen’s

plea agreement barred his § 2255 petition. It also correctly noted that a defendant

with a valid appeal waiver may bring an ineffective assistance of counsel claim

only when the alleged ineffective assistance “is ‘in connection with the

negotiation of the waiver.’” R. Vol. I, Doc. 26, at 2 (quoting Hahn, 359 F.3d at

1327).

None of the seven instances of ineffectiveness that Mr. Tellinghuisen

alleges in his § 2255 petition motion relates to his attorney’s negotiation of the

appeal waiver. This same shortcoming plagues his arguments on appeal. See

Appellant’s Br. 4-17. Because none of these grounds are a permissible basis for

avoiding his appellate waiver, Hahn, 359 F.3d at 1327, no reasonable jurist would

debate whether the district court properly resolved his habeas petition.

Conclusion

Accordingly, we DENY Mr. Tellinghuisen’s request for a COA and

DISMISS this appeal.

Entered for the Court,

Michael W. McConnell

Circuit Judge