UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PETER PARK, Defendant - Appellant. No. 17-3254 (D.C. Nos. 2:16-CV-02728-KHV and 2:12-CR-20083-KHV-11) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before BACHARACH , MURPHY , and MORITZ , Circuit Judges.

________________ _________________ Proceeding pro se, federal prisoner Peter Park seeks a certificate of appealability (COA) to appeal the district court’s deni al of his 28 U.S.C. § 2255 motion. 1 Because Park fails to demonstrate th at reasonable jurists could debate the district court’s resolution of his claims, we deny his re quest for a COA and dismiss this matter. In 2013, Park pleaded guilty to cons piring to commit various drug offenses and to possessing a firearm in furtherance of a drug-traffick ing crime. As part of his

* This order isn’t binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. But it may be cite d for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Park appears pro se, we liberally construe his filings. Gallagher v. Shelton , 587 F.3d 1063, 1067 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

### March 15, 2018 Elisabeth A. Shumaker Clerk of Court2 plea agreement, Park waived his right to a ppeal or collaterally a ttack his convictions and his sentence. The plea agreement’s wa iver provision contained an exception, however, for claims alleging ineffective as sistance of counsel and prosecutorial misconduct. Despite agreeing to waive his appellate rights, Park later appealed his conviction and sentence. He then voluntarily stipulated to the dism issal of his direct appeal and, nine months later, file d the instant 28 U.S.C. § 2255 motion. Construing Park’s § 2255 motion liberally, see Gallagher , 587 F.3d at 1067, the district court detected 21 distinct claims: claims 1–5 and 8–15 alleged ineffective assistance of counsel; claims 6, 7, and 16 alleged pros ecutorial misconduct; claim 17 asserted that the trial court erred in failing to hold the government to an alleged oral agreement; claim 18 asserted a Fifth Am endment violation; claim 19 alleged a violation of Park’s speedy-trial rights; clai m 20 alleged that the trial court erred in accepting the defendant’s plea ; and claim 21 argued that the trial court erred in allowing the government to us e unlawfully obtained evidence. 2
The district court concluded that claims 17–21 fell within the scope of the plea waiver and declined to consider them on that basis. It then reje cted Park’s remaining

2 Park doesn’t challenge the district c ourt’s characterization of his claims. We therefore accept that character ization as accurate for pur poses of resolving Park’s COA request.3 claims on the merits, denied his § 2555 motion, and deni ed him a COA. Park now seeks to appeal. But first, he must obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). In determining whether to grant a COA, we take one of two approaches. If the district court rejected a pa rticular claim on the merits , a petitioner seeking a COA “must demonstrate that reasona ble jurists would find the di strict court’s assessment of [that claim] debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). If, on the other hand, the district court re jected a claim on procedural grounds, the prisoner must show both (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling” and (2) “that jurists of reason would find it debatable whethe r the petition states a valid claim of the denial of a constitutional right.” Id. Here, the district court took a hybrid a pproach in analyzing Park’s petition. First, it rejected claims 17– 21 on procedural grounds, concl uding that they fell within the scope of the plea agreement’s waiv er provision. Thus, to obtain a COA to challenge the district court’s resolution of these claims, Pa rk must demonstrate, inter alia, “that jurists of reason would find it debatable whether the district court was correct in [this] procedural ruling.” Slack , 529 U.S. at 484. Yet Park’s opening brief contains “nar y a word to challenge” the district court’s procedural ruling. Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1369 (10th Cir. 2015). In fact, Park doesn’t even ac knowledge the district court’s grounds for refusing to consider these claims, let alone identify a basis upon which reasonable4 jurists might find the district court’s resolution of these cl aims debatable. Thus, Park necessarily fails to make the requisite Slack showing, and we therefore deny him a COA to appeal the district cour t’s resolution of claims 17–21. We turn next to Park’s remaining clai ms, which the district court rejected on the merits. As discussed above, Park is entitled to a COA to appeal the district court’s resolution of these claims onl y if he demonstrates that “reasonable jurists would find the district court’s assessment of [them] debatable or wrong.” Slack , 529 U.S. at 484. Park first asserts that defense counsel was ineffective in a dvising him to plead guilty to possessing a firearm in furtherance of the drug c onspiracy because Park was “innocent of th[at] crime.” Aplt. Br. 5. At the outset, we note that we’re not en tirely convinced Park ever raised this specific claim below; instead, it appears he argued there (in what the district court treated as claim 15) that de fense counsel was ineffective in advising Park “to sign a plea agreement before discovery conclude d.” R. vol. 2, 191. And in determining whether to grant a COA, we generally decl ine to review those arguments a petitioner failed to advance in district court. See United States v. Viera , 674 F.3d 1214, 1220 (10th Cir. 2012) Nevertheless, even if we assume Park advanced this specific claim below, he fails to demonstrate “that reas onable jurists could debate wh ether (or, for that matter, agree that) [his] petition shou ld have been resolved in a different manner” on the basis of this claim. Slack , 529 U.S. at 484. “[W]hen a defendant alleges that his5 attorney’s ineffective assist ance led him to plead guilty , the test for prejudice is whether he can show that he would not ha ve pled guilty had hi s attorney performed in a constitutionally adequate manner.” Miller v. Champion , 262 F.3d 1066, 1068 (10th Cir. 2001). And to make this showing, a pe titioner must—at a minimum— allege “that he would have insisted on trial but for his counsel’s errors.” Id. at 1072. Because Park makes no such allegation here, he ’s not entitled to a COA on this basis. Next, Park asserts that the prosecutor committed misconduct by promising to “take the [§] 924(c) away at sentencing” a nd then failing to follow through on that promise. Aplt. Br. 6; see also 18 U.S.C. § 924(c)(1)(A) (pr oviding that any person who possesses a firearm in furt herance of a drug-trafficki ng crime “shall, in addition to the punishment provided for such crime” be subject to additional penalty). The district court rejected this argumen t, which it treated as claim 16, noting that the trial court found th is alleged promise “could not be enforced at sentencing because it violated the plea agreement.” R. vol. 2, 194. In light of this finding, the district court reasoned, Park “fail[ed] to show how the go vernment’s failure to seek enforcement of the agreement affected his conviction or sentence or infected the proceedings with unfairness that amount ed to a denial of due process.” Id. ; see also Cole v. Trammell , 755 F.3d 1142, 1174 (10th Cir. 2014). In other words, the district court conc luded that even assuming the prosecutor made and then reneged on such a promise, Park’s failure to establish the prosecutor’s actions prejudiced him was fatal to his prosecutorial misconduct claim. And Park6 makes no attempt to explain how or why “r easonable jurists would find the district court’s assessment . . . debatable or wrong.” Slack , 529 U.S. at 484. Accordingly, we won’t grant a COA on this basis. Finally, in a related argument, Park asserts that defense counsel was ineffective in failing to “g et a written agreement” from the government regarding its alleged promise to “take the 924(c) away at sentencing.” Aplt. Br. 6, 9. The district court rejected this argument, which it tr eated as claim 2, on the same basis upon which it rejected claim 16. Th at is, the district court c ited the trial court’s finding “that enforcing the alleged [promise] w ould not be consistent with the plea agreement,” R. vol. 2, 186, and conclude d that even assuming defense counsel’s performance was deficient, Park theref ore couldn’t demons trate “a reasonable probability that, but for counsel’s unprofessi onal errors, the resu lt of the proceeding would have been different.” Strickland v. Washington , 466 U.S. 668, 694 (1984). Because Park fails to engage with the distri ct court’s reasoning, he once more fails to establish that “reasonable jurists would fi nd the district court’s assessment . . . debatable or wrong.” Slack , 529 U.S. at 484. Park is th erefore not entitled to a COA on this basis either. For the reasons discussed above, Park is n’t entitled to a COA to appeal the district court’s resolution of claim 2 or claims 15–21. That leaves claim 1 and claims 3–14. But Park doesn’t addres s these remaining claims or the district court’s reasons for rejecting them. Accordingl y, Park necessarily fails to show that “reasonable7 jurists would find the district court’s assessment” of th ese claims “debatable or wrong.” Slack , 529 U.S. at 484. Thus, we deny Pa rk’s COA request and dismiss the

matter.

Entered for the Court

Nancy L. Moritz Circuit Judge