*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 14 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES L. GIBSON,

Defendant - Appellant.

No. 02-6108

(D.C. No. CR-99-177-A

& CIV-01-1431-A)

(W.D. Oklahoma)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, SEYMOUR and EBEL, Circuit Judges.

James L. Gibson challenges the district court’s denial of his pro se motion

under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. His case is

now before this panel on his application for a Certificate of Appealability (COA)

pursuant to 28 U.S.C. § 2253(c)(2), which provides that a COA will issue only if

the applicant has made a substantial showing of the denial of a constitutional
1

 The waiver in this case stated: 

Defendant understands that a sentencing guideline range for his case

will be determined by the Court under the guidelines issued by the

U.S. Sentencing Commission. Defendant also understands that the

Court has jurisdiction and authority to impose any sentence within

the statutory maximum for the offense(s) to which he is pleading

guilty. Defendant further understands that Title 18, United States

Code, Section 3742, gives him the right to appeal the judgment and

sentence imposed by the Court. Acknowledging all this, defendant in

exchange for the promises and concessions made by the United States

in this plea agreement, knowingly and voluntarily waives his right to

appeal or collaterally challenge: 

a. Defendant’s guilty plea and any other aspect of his conviction,

including but not limited to any rulings on pretrial suppression

motions or any other pretrial dispositions of motions and issues.

b. Defendant’s sentence as imposed by the Court and the manner in

which the sentence is determined, provided the sentence is within or

below the applicable guideline range determined by the Court to

apply to this case, even if the Court rejects one or more of the

positions of the United States or the defendant set forth in paragraph

6 concerning the application of the U.S. Sentencing Guidelines;

provided that (i) defendant specifically does not waive the right to

-2-

right. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we are not

persuaded Mr. Gibson has made such a showing, we deny his application for a

COA. 

Mr. Gibson entered a plea of guilty to aiding and abetting the unlawful

possession of a firearm by a convicted felon. See 18 U.S.C. § 2(a), § 922(g)(1). 

His plea included a waiver of his rights to appeal or to collaterally challenge his

plea, conviction or sentence.1

 Mr. Gibson now contends that his guilty plea was
appeal an upward departure from the sentencing guideline range

determined by the Court to apply to this case, and (ii) his waiver of

rights to appeal and to bring collateral challenges shall not apply to

appeals or challenges based on changes in the law reflected in Tenth

Circuit or Supreme Court cases decided after the date of this

agreement which are held by the Tenth Circuit or Supreme Court to

have retroactive effect. 

Rec. vol. I, doc. 76 at 4-5.

-3-

not knowing, voluntary, or intelligent because he was misinformed about its

sentencing consequences and because he received ineffective assistance of

counsel during the plea process. He argues further that the waiver of appeal

rights in the plea agreement is invalid due to the alleged involuntariness of his

plea. The district court examined these claims and found them to be without

merit.

As the district court correctly noted, in United States v. Cockerham, 237

F.3d 1179 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002), we explained the

significance and effect of waiver provisions where ineffective assistance claims

are involved. A waiver such as the one made by Mr. Gibson is generally

enforceable. An exception exists where the defendant claims ineffective

assistance of counsel in the negotiation of his plea agreement or with respect to

the waiver itself. Id. at 1190-91. Mr. Gibson challenges the voluntariness and

intelligence of his plea and waiver of rights with what he claims was deficient

advice from his attorney concerning the potential sentence he might receive. 
-4-

In assessing this claim, the district court catalogued the occasions on which

Mr. Gibson was informed by the court and his attorney of the terms and potential

ramifications of his plea, his waiver, and the potential sentencing consequences. 

It further noted Mr. Gibson’s acknowledgment that he accepted the terms of the

plea agreement and waiver and understood their impact. The court also listed the

occasions on which Mr. Gibson’s counsel demonstrated his competent

representation of his client in the plea negotiation process. Having thoroughly

reviewed the record, we agree with the district court’s conclusion that there is no

merit in Mr. Gibson’s claim of ineffective assistance of counsel in the plea

negotiation process. 

Insofar as Mr. Gibson’s claims on appeal constitute attacks on his sentence

or on his representation in the sentencing process, we affirm the district court’s

holding that these attacks cannot survive the waiver in the plea agreement which

was voluntarily and knowingly made. See Cockerham, 237 F.3d at 1186-87. 

In short, because none of Mr. Gibson’s challenges survive the waiver

agreement in his plea, he cannot show that reasonable jurists could debate

whether the petition should have been resolved differently or that the issues

presented are adequate to deserve encouragement to proceed further. See Slack,

529 U.S. at 484. He has thus not made a substantial showing of the denial of a

constitutional right to warrant an issuance of a COA. See 28 U.S.C. § 2253(c)(2). 
-5-

Accordingly, we DENY the application for a COA and DISMISS the

appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge