* This order and judgment is not binding precedent, except under the

doctrines of res judicata, collateral estoppel, and law of the case. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 16 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ALBERT J. THOMAS, SR., Defendant - Appellant. No. 02-3145 D.C. No. 00-CR-10026-01-JTM and 01-CV-3345-JTM (D. Kansas)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The c ase is therefore ordered submitted without oral argument.-2-

This appeal arises out of proceedings in the United States District Court for the District of Kansas, where the defendant Albert J. Thomas, Sr., pleaded guilty to the following charges: (1) manufacture of cocain e base, (2) distribution of cocaine base; and (3) possession with intent to dis tribute cocaine base, all in violation of 21 U.S.C. § 841(a)(1). Mr. Thomas nowseeks to collaterally attack those convictions. Because Mr. Thomas signed a wri tten plea agreement in which he waived his right to challenge his sentence, we d ismiss this appeal for lack of jurisdiction.

I. BACKGROUND The waiver provision of Mr. Thomas’s plea agreementstates: The defendant . . . is aware that Title 18, United States Code, Section 3742 affords the defendant the right to appeal the sentence imposed. Acknowledging all t his, the defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute (s) of conviction (or the manner in which that sentence wa s determined) on the grounds set forth in Title 18, U nited States Code, Section 3742 or on any ground whatever , in exchange for the concession made by the United Stat es in this plea agreement. The defendant also waives his right to challenge his sentence or the manner in which itwas determined in any collateral attack, including but not limited to a motion brought under Title 28, United State s Code, section 2255. Rec. vol. I, doc. 133, attach. 1, at 2-3 (Plea Agre ement, filed May 17, 2000). The agreement adds that “the parties further agree thatthe United States has made no1 “In Latin, ‘coram nobis’ means ‘before us.’ Origi nally, the petition was

submitted in the court of the King’s Bench, or ‘bef ore us’ in the sense of being

(continued...) -3- promises or representations to this defendant or hi s attorney regarding what sentence might be imposed or which sentencing guide line level will be appropriate.” Id. at 3. During the plea hearing, Mr. Thomas stated that he understood the provisions of the plea agreement, that no “force, t hreats, duress or coercion or any other . . . promises other than what’s contained in the plea agreement” had been employed to induce him to enter into the plea agree ment, Rec. vol. II, doc. 132, at 22 (Change of Plea Hr’g, May 17, 2000), that he had had the opportunity to consult with his counsel about the plea agreement, and that he was satisfied with counsel’s representation. Additionally, the distri ct court asked Mr. Thomas if he understood that “you’re not going to be able to att ack your sentence collaterally or what we typically call a habeas corpus petition, a § 2255 action. You understand that?” Id. at 33. Mr. Thomas responded affirmatively. Id. The district court accepted Mr. Thomas’s guilty ple a. The court subsequently sentenced him to concurrent terms of i mprisonment of 108 months on each of the three counts. Proceeding pro se, Mr. Thomas then filed a series o f motions challenging his sentence, including (1) a Writ of Error Coram Nobis at Common Law;” 1 (2) a1 (...continued)

before the King. In contrast, the writ of coram vob is, an analogous procedure, was brought before judges of the court of Common Pleas, or ‘before you.’ The distinction between these terms is ‘virtually meani ngless in the American context.’” United States v. Sawyer , 239 F.3d 31, 37 n.4 (1st Cir. 2001) (quoting M. Diane Duszak, Note, Post- McNally Review of Invalid Convictions Through the Writ of Coram Nobis , 58 Fordham L.Rev. 979, 981 n. 18 (1990)). The Supreme Court has explained that a writ of cora m nobis is an “extraordinary remedy” allowed “only under circumst ances compelling such action to achieve justice.” United States v. Morga n , 346 U.S. 502, 511 (1954); see also Klein v. United States , 880 F.2d 250, 253 (10th Cir.1989) (“The writ is available only to correct errors that result in a c omplete miscarriage of justice.”). (internal citation and quotation marks omitted). T he writ is usually only applied in cases where the petitioner has served his senten ce and is no longer in custody or has not yet begun serving the challenged sentenc e. United States v. Johnson , 237 F.3d 751, 755 (6th Cir. 2001) (“[T]he writ of c oram nobis is available only when a § 2255 motion is unavailable--generally, whe n the petitioner has served his sentence completely and thus is no longer ‘in c ustody’ as required for § 2255 relief.”) (internal quotation marks omitted).

2 Because Mr. Thomas is currently in custody, we ag ree with the district court’s characterization of these motions as seekin g relief under § 2255. See Johnson , 237 F.3d at 755 (“A prisoner in custody is barredfrom seeking a writ of error coram nobis.”). -4- “Clarification of 28 USC §§1651 & 1654 Pursuant to a Writ of Error Coram Nobis at Common Law;” (3) an “Amended Writ of ErrorCoram Nobis at Common Law;” (4) a “Motion for Pre-trial Detention Jail Credit;” (5) a motion under 28 U.S.C. § 2255; and (6) a motion requesting grand jury records regarding his indictment. See Rec. vol. I, docs. 114, 117, 118, 125, 131, and 13 7. The district court treated all these motions as request ing relief pursuant to 28 U.S.C. §
2255. See Rec. vol. I, doc. 140, at 5 (Order, filed March 14, 2002). 2 The court rejected Mr. Thomas’s various challenges to his sentence on the grounds of the-5-

waiver provision of the plea agreement. Alternativ ely, the district court rejected Mr. Thomas’s claims on the merits. Mr. Thomas now appeals that ruling.

II. DISCUSSION Mr. Thomas seeks a certificate of appealability on (1) claims involving the alleged ineffective assistance of counsel and (2) t he denial of access to records of the grand jury proceedings. He also seeks to proce ed in forma pauperis. In order to receive a certificate of appealability (which Mr. Thomas must obtain in order to prosecute this appeal), Mr. Thom as must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Thomas may make this showing by demonstrating that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel , 529 U.S. 473, 484 (2000). In order to proceed in forma pauperis in this appeal, Mr. Thomas “must show a financial inability to pay the required filing fees and the existence of areasoned, nonfrivolous argument on the law and facts in support of the iss ues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Upon review of the record, we conclude that Mr. Thomas has failed to meet these standards. In United States v. Cockerham , 237 F.3d 1179, 1183 (10th Cir. 2001), we held that “a waiver of collateral attack rights bro ught under § 2255 is generally3 But see Cockerham , 237 F.3d at 1191 (Briscoe, J., concurring and

dissenting) (concluding that “a defendant can[not] fairly be said to have waived his right to appeal his sentence on the ground thatthe proceedings following the entry of the guilty pleawere conducted in violation of his Sixth Amendmentright to counsel, for a defendant’s agreement to waive ap pellate review of his sentence is implicitly conditioned on the assumption that th e proceedings following entry of the plea will be conducted in accordance with co nstitutional limitations”) (emphasis added). -6- enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made.” 3 Importantly, that general rule is subject to severa l exceptions, including “where the agreement was involuntary or unknowing, where the court relied on an impermissible factor such as race, or whether the a greement is otherwise unlawful.” Id. at 1182. Moreover, “a plea agreement waiver of po stconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or waiver. ” Id. at 1187 (emphasis added). Accordingly, when a defendant who has waived his orher right to collaterally attack a sentence subsequently asserts a claim for ineffective assistance of counsel, we must determine what parti cular conduct the defendant has challenged. Claims asserting that, because of counsel’s ineffectiveness, either the plea or the waiver is invalid, are not subject to waiver. On the other hand,-7-

“[c]ollateral attacks based on ineffective assistan ce of counsel claims that are characterized as falling outside that category are waivable.” Id. at 1187.

A. Ineffective Assistance of Counsel Claims In his appellate brief, Mr. Thomas advances the fol lowing contentions regarding ineffective assistance of counsel: (1) “c ounsel negotiated away movant’s right to file pre-trial motions which robb ed him of a just and concise evaluation of the situation and exactly what the nature and cause of his charge in regard to evidence against him;” (2) “counsel allow ed the prosecution to breach the agreement made by all the parties;” (3) “counse l failed to file a notice of appeal per movement’s request;” and (4) “counsel al lowed [the] prosecution to use prior convictions to enhance movant’s sentence. ” Aplt’s Br. at 3. Significantly, Mr. Thomas does not provide any addi tional details as to the factual basis for these claims. Upon review of Mr. Thomas’s brief, we conclude thatthese ineffective assistance of counsel claims do not relate to the v alidity of the plea agreement and waiver. As a result, Mr. Thomas has waived the rig ht to bring these challenges. In particular, Mr. Thomas’s first and fourth ineffe ctive assistance claims—that “counsel negotiated away movant’s rightto file pre-trial motions” and that “counsel allowed [the] prosecution to use prior convictions to enhance-8-

movant’s sentence”—merely describe the results of t he plea agreement and waiver: Mr. Thomas’s counsel did not take these ste ps because Mr. Thomas relinquished the right to do so. The fact that cou nsel acted consistently with the provisions of the waiver in no way indicates that h e was ineffective in advising Mr. Thomas regarding the proposed waiver, and Mr. T homas has set forth no specific facts indicating that his counsel’s perfor mance was deficient in this regard. Mr. Thomas’s second allegation of ineffective assis tance—that his counsel “allowed the prosecution to breach the agre ement made by all the parties”— is simply too vague to provide any basis for relief. See Murrell v. Shalala , 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (stating that “perfunctory complaints [which] fail to frame and develop an iss ue [are] insufficient to invoke appellate review”). Mr. Thomas does not explain ho w the prosecution breached the agreement or how this alleged conduct affected the ultimate disposition of this

case. Mr. Thomas’s third allegation of ineffective assist ance of counsel is similarly insufficient to overcome the waiver provi sion. Although he alleges that his counsel “failed to file a notice of appeal per movement’s request,” he does not explain on what basis such an appeal could have bee n filed. Because the plea agreement contained a waiver of appeal provision, t here were only limited-9-

grounds upon which an appeal could have been filed. See Cockerham , 237 F.3d at 1182 (noting that agreements waiving the right t o appeal are subject to certain exceptions, including “where the court relied upon an impermissible factor such as race, or whether the agreement is otherwise unlawful”). Mr. Thomas does not argue that one of these exceptions is applicable. Because Mr. Thomas’s ineffective assistance claims do not relate to the validity of the plea agreement and waiver, he has w aived the right to assert them in collateral proceedings “so long as he knowingly and voluntarily entered the plea and made the waiver.” Id. at 1188. Our review of the plea proceedings indicates that Mr. Thomas’s plea and waiver were kn owing and voluntary, and in this appeal he has failed to point to any evidence in the record supporting the contrary conclusion. In light of the waiver provi sion of the plea agreement, we therefore conclude that the district court properly denied Mr. Thomas’s postconviction motions insofar as they concerned his in effective assistance of counsel claims.

B. Denial of Access to Grand Jury Records Mr. Thomas also argues that he should have been pro vided with materials relating to the grand jury proceedings relating to his indictment. As the district court noted, “[w]ith few exceptions . . ., records of grand jury proceedings are not-10-

to be disclosed.” Rec. vol. I, doc. 140 at 7 (citing United States v. Troutman , 814 F.2d 1428, 1452 (10th Cir. 1987)); see also Troutman , 814 F.2d at 1453 (“[U]pon the showing of a particularized rather than a gener al need, the minutes [of a grand jury proceeding] should be disclosed in a discrete and limited manner.”). In any event, the plea agreement and waiver preclude Mr. T homas from now asserting this claim.

III. CONCLUSION For the reasons set forth above, we therefore DENY Mr. Thomas’s application for a certificate of appealability and DENY his application to proceed in forma pauperis, and we DISMISS this appeal.

Entered for the Court,

Robert H. Henry Circuit Judge