UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CLIFFORD A. DODDS, Defendant - Appellant. No. 17-3116 (D.C. Nos. 2:15-CV-02621-CM & 2:13-CR-20043-CM-1) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HOLMES , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Clifford Dodds, a federal prisoner, s eeks a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 motion asserting ineffective assistance of counsel. Be cause Dodds has failed to demonstrate entitlement to a COA, we deny his request for a COA and dism iss this matter. After Dodds was charged with numerous fe deral drug and fire arm offenses, he moved to suppress certain ev idence. While that motion was pending, the government submitted a plea offer to Dodds agr eeing to 120 months’ imprisonment if he withdrew his motion to suppress and pleaded guilty to one count. The plea offer indicated it expired on December 2, 2013, a few weeks prior to the suppression

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

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Elisabeth A. Shumaker Clerk of Court2 hearing. Dodds rejected this offer, and the district c ourt subsequently denied his motion to suppress. Dodds ultimately accepted a second plea offer under which he pleaded guilty to possession with intent to distribute 28 grams or more of cocaine base (crack cocaine) within 1000 feet of a school and possession of a firearm in furt herance of a drug trafficking crime. Both parties agreed, under Fed. R. Crim. P. 11(c)(1)(C), that Dodds should be sentenced to 210 months ’ imprisonment followe d by eight years of supervised release. A pr esentence report (PSR) prepar ed under the 2014 Sentencing Guidelines determined that Dodds was a career offender under United States Sentencing Guidelines Manual (USSG) § 4B1.1 (U.S. Sentencing Comm’n 2013), and that his sentencing range should be 262 to 327 months’ imprisonment. Nevertheless, the district court accepted the binding Rule 11(c)(1)(C) plea agreement and sentenced Dodds to 210 months. Dodds filed a § 2255 motion in Februa ry 2015 asserting his counsel, John Kerns, was ineffec tive in representing him. 1 First, he claimed Kerns was ineffective in negotiating the government’s 120-month plea offer. Specifically, he asserted that Kerns didn’t advise him as to whether that offe r should be accepted; guaranteed that Dodds would prevail on th e motion to suppress evidence, causing Dodds not to give any meaningful considera tion to that plea offer; failed to warn

1 Dodds’ plea agreement contains a waiver of appellate right s, but permits him to bring an ineffective as sistance claim under § 2255 if the claim is related to counsel’s ineffective assistan ce in negotiating or entering th e plea. The district court ruled the government waived the appellate waiver by not seeking to enforce it.3 Dodds that the plea offer would expire befo re the suppression hearing; and failed to inform him that he could be sentenced as a career offender, wh ich would result in a substantially higher sentence than the 120- month plea offer. Dodds also claimed Kerns was ineffective by failing to object to the PSR’s determ ination that Dodds prior convictions qualified him as a career offender under USSG § 4B1.1. 2
The district court first denied Dodds’ claim that Kerns wa s ineffective for failing to object to the PSR ’s career-offender designation. The court reasoned that Kerns couldn’t have been ineffective in fa iling to object because the court accepted the parties’ Rule 11(c)(1)(C) plea agreem ent and, thus, didn’t sentence Dodds under the Sentencing Guidelines or rule on whet her Dodds was a career offender. Because the district court accepted the parties’ plea ag reement, Dodds suffered no prejudice as to the PSR’s determination that he should be sentenced as a ca reer offender. The district court conducted a hearing on Dodds’ remaining claim that Kerns was ineffective in th e initial plea negotiation proce ss. Based on Kerns’ testimony and case file records, as well as Dodds’ affidavits, the di strict court denied Dodds’ § 2255 motion. The court, after finding Ke rns’ testimony credib le, concluded that (1) Dodd insisted Kerns file a motion to suppress; (2) Ke rns didn’t encourage Dodds

2 Dodds later amended his § 2255 motion to claim one of his § 4B1.1 prior convictions should not have qualified as a crime of vi olence for sentencing purposes in light of Johnson v. United States , 135 S. Ct. 2551, 2557 (2015) (holding the residual clause of the Armed Career Crim inal Act was unconstitutionally vague). The district court denied Dodd’s Johnson claim on the merits after the Supreme Court ruled in Beckles v. United States , 137 S. Ct. 886, 890 (2017), that the advisory Sentencing Guidelines were not subject to a Johnson vagueness claim. Dodds does not seek a COA on that issue.4 to file that motion; (3) Kerns never advi sed Dodds that he had 100 percent chance of success on the suppression motion or otherw ise guaranteed its success; (4) Kerns read the 120-month plea offer to Dodd s verbatim, including the December 2 deadline; (5) Dodds didn’t ask about the government’s 120-month plea offer after the suppression motion was denied because Dodd s was fully aware that the offer had expired; (6) Kerns never said the offer would remain open after December 2; and (7) the potential that Dodds would be senten ced as a career offender was inherent in any discussion of the 120-month plea offer, and Kerns discussed that risk with Dodds and explained that risk had to be cons idered in deciding wh ether to accept the 120-month plea offer. Base d on these findings and appli cation of the ineffective assistance of counsel st andards articulated in Strickland v. Washington , 466 U.S. 668, 687, 694 (1984), the district court ruled Kerns did not provi de ineffective assistance of counsel. The court d eclined to issue a COA. A prisoner challenging a de nial of a 28 U.S.C. § 2255 motion must obtain a COA as a jurisdictional prerequisite to proceed with an appeal. 28 U.S.C. § 2253(c)(1)(B). We will issu e a COA “only if the appli cant has made a substantial showing of the denial of a constitutional right.” Id . § 2253(c)(2). “The petitioner must demonstrate that reasonable jurists woul d find the district c ourt’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “In reviewing the denial of a § 2255 motion, we review the district court’s legal rulings de novo and its findi ngs of fact for clear error.” United States v. Cockerham , 237 F.3d 1179, 1181 (10th Cir. 2001).5 In his Application, Dodds points out that when Kerns testified at the hearing, he had difficulty recalling the de tails of his conversations with Dodds. It is true that Kerns explained that he could not inde pendently recollect the details of his conversations with Dodds. But he also testified that he re viewed his notes and records and he was almost 100 percent certain that he r ead the plea o ffer to Dodds verbatim. Moreover, the terms of the plea offer included a discussion of the potential risk that Dodds could be sentenced as a career offender, and included the December 2, 2013 deadline. Kerns also testified that he was certai n he discussed the risk of being sentenced as a career offender because that was the primar y issue in Dodds’ case. Finally, Kerns testified that he ne ver guaranteed any clie nt success on motions, and he would not have done so rega rding Dodds’ suppression motion. Dodds has not shown that reasonable juri sts could debate whether the district court’s credibility findings were clearly erroneous. See United States v. Rantz , 862 F.2d 808, 810 (10th Cir. 1988) (reviewing for clear error a district court’s factual findings after an evidentiary hearing). Nor has he shown that the court's legal conclusions are reas onably debatable. We therefore deny a COA and dismiss the appeal.

Entered for the Court
Nancy L. Moritz Circuit Judge