This order is not binding precedent, except under the doctrines of law of *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

F I LED

United States Court of Appeals

Tenth Circuit

April 11, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff–Appellee, No. 06-7092

v. (D.C. No. 06-CV-51-RAW)

DARNELL JAMAR NASH, (E.D. Okla.)

Defendant–Appellant.

 

ORDER*

Before McKAY, BRISCOE, and McCONNELL, Circuit Judges.

In this pro se 28 U.S.C. § 2255 prisoner appeal, Defendant contends that he

received ineffective assistance of counsel regarding his plea agreement as well as

at sentencing and on appeal, that the district court erroneously accepted his plea

in violation of Rule 11 of the Federal Rules of Criminal Procedure, and that the

district court improperly addressed Defendant’s objections in violation of former

provisions of Rule 32 of the Federal Rules of Criminal Procedure. 

His conviction was affirmed on direct appeal by a panel of this court in

United States v. Nash, 120 Fed. App’x 770 (10th Cir. 2005) (unpublished), which

addressed the consequence of the appellate waiver in his plea agreement as well
-2-

as the level of effective counsel that led to his knowing and voluntary plea. The

district court, relying predominately on statements made in that opinion and on

the consequences of the appellate waiver provision, determined that Defendant

was not entitled to relief on any of his claims and denied his § 2255 petition and

his request for a certificate of appealability (“COA”). 

Although Defendant has not filed a formal COA application, we treat his

notice of appeal as such. See Fed. R. App. P. 22(b)(2). To obtain a certificate of

appealability, Petitioner must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). In order to meet this burden,

Petitioner must 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) (quotation

omitted).

As an initial matter, we note that the panel on direct appeal concluded that

Defendant knowingly and voluntarily entered into the plea agreement. 

Accordingly, Defendant’s Rule 11 challenge is denied, as is his claim of

ineffective assistance of counsel based on the alleged failure of defense counsel to

adequately advise Defendant as to the plea agreement. See United States v.

Nolan, 571 F.2d 528, 530 (10th Cir. 1978) (noting that an issue disposed of on

direct appeal will not be reconsidered on a collateral attack pursuant to § 2255
-3-

absent an intervening change in the law of the circuit). Also, Defendant never

raised his Rule 32 contention on direct appeal. “[T]he failure by a defendant to

raise a nonconstitutional issue on direct appeal when he was able to do so

ordinarily will bar collateral review of that issue under Section 2255.” United

States v. Gattas, 862 F.2d 1432, 1435 (10th Cir. 1988). Defendant has failed to

overcome this bar. See United States v. Tranakos, 968 F.2d 1225 (10th Cir. 1992)

(table). To the extent Defendant’s Rule 32 argument is predicated on having

received ineffective assistance of counsel at sentencing, we observe that defense

counsel at sentencing objected to certain factual assertions contained in the presentence report, but those objections were overruled. Defendant has not

established that counsel’s performance “fell below an objective standard of

reasonableness” or that his sentence would have been different were it not for the

alleged ineffectiveness. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

Finally, Defendant’s contention that he received ineffective assistance of

counsel on direct appeal is without merit. See United States v. Martinez-Lomeli, 

86 F.3d 1167 (10th Cir. 1996) (table) (“The mere filing of an Anders Brief cannot

form the basis for a claim of ineffective assistance of counsel and has no bearing

on the relief being sought by [Defendant] on this direct appeal—relief from the

sentence imposed by the district court.”). We agree with the district court’s

conclusion regarding the lack of meritorious issues and, therefore, with its

conclusion that the Strickland test has not been satisfied.
-4-

A careful review of Defendant’s brief, the district court’s disposition, and

the record on appeal, reveals nothing raising an issue that meets our standard for

the grant of a certificate of appealability. Accordingly, we DENY Defendant’s

request for a certificate of appealability and DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge