* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. 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 

### 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, SEYMOURand EBEL , Circuit Judges.

James L. Gibson challenges the district court’s den ial of his pro se motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Cor rect Sentence. His case is now before this panel on his application for a Cert ificate 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 constitutional1 The waiver in this case stated:

Defendant understands that a sentencing guideline r ange for his case will be determined by the Court under the guideline s issued by the U.S. Sentencing Commission. Defendant also underst ands that the Court has jurisdiction and authority to impose any sentence within the statutory maximum for the offense(s) to which h e is pleading guilty. Defendant further understands that Title 1 8, United States Code, Section 3742, gives him the right to appeal t he judgment and sentence imposed by the Court. Acknowledging all t his, defendant in exchange for the promises and concessions made by t he United States in this plea agreement, knowingly and voluntarily w aives 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 pretria l suppression motions or any other pretrial dispositions of motio ns and issues. b. Defendant’s sentence as imposed by the Court an d the manner in which the sentence is determined, provided the sent ence is within or below the applicable guideline range determined by the Court to apply to this case, even if the Court rejects one o r more of the positions of the United States or the defendant setforth in paragraph 6 concerning the application of the U.S. Sentencing Guidelines; providedthat(i) defendant specifically does not waive the righ t 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 de ny his application for a
COA. Mr. Gibson entered a plea of guilty to aiding and a betting 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 wasappeal an upward departure from the sentencing guid eline 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 r eflected 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 w as misinformed about its sentencing consequences and because he received ine ffective assistance of counsel during the plea process. He argues furtherthat 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 defenda nt claims ineffective assistance of counsel in the negotiation of his ple a agreement or with respect to the waiver itself. Id. at 1190-91. Mr. Gibson challenges the voluntarine ss and intelligence of his plea and waiver of rights with what he claims was deficient advice from his attorney concerning the potential s entence he might receive.-4-

In assessing this claim, the district court catalog ued the occasions on which Mr. Gibson was informed by the court and his attorn ey of the terms and potential ramifications of his plea, his waiver, and the pote ntial sentencing consequences. It further noted Mr. Gibson’s acknowledgment that h e accepted the terms of the plea agreement and waiver and understood their impa ct. The court also listed the occasions on which Mr. Gibson’s counsel demonstrate d his competent representation of his client in the plea negotiatio n process. Having thoroughly reviewed the record, we agree with the district cou rt’s conclusion that there is no merit in Mr. Gibson’s claim of ineffective assistan ce 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 waive r 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 s urvive the waiver agreement in his plea, he cannot show that reasonab le jurists could debate whether the petition should have been resolved diff erently 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 substantia l showing of the denial of a constitutional right to warrant an issuance of a CO A. 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