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

### November 23, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAMES CRAIG JEFFERSON, also known as Craig Jefferson, Defendant-Appellant. No. 05-6067 (Western District of Oklahoma) (D.C. No. CIV-04-895-C)

ORDER

Before BRISCOE , LUCERO and MURPHY , Circuit Judges.
Petitioner, James Craig Jefferson, seeks a certific ate of appealability (“COA”) so he can appeal the district court’s denia l of the motion to vacate, set aside, or correct sentence he brought pursuant to 2 8 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (providing that a movant may not ap peal the denial of a § 2255 motion unless the movant first obtains a COA). Pur suant to the terms of a plea agreement, Jefferson pleaded guilty to one count of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Jefferson w as sentenced to two hundred and thirty-five months’ incarceration and three years’ supervised release.1 Jefferson also filed a direct appeal. This court e nforced the waiver and

dismissed the appeal. United States v. Jefferson , 63 Fed. App’x 439 (10th Cir. 2003). -2- Although Jefferson waived his right to appeal or co llaterally challenge his conviction and sentence as part of his plea agreeme nt, he filed the instant § 2255 motion on July 19, 2004. 1 In the motion, Jefferson raised two issues: (1) h is attorney provided constitutionally ineffective assi stance, and (2) his sentence was improper under Blakely v. Washington , 542 U.S. 295 (2004). The district court concluded that the waiver in Jefferson’s plea agree ment was enforceable as to his ineffective assistance claims. See United States v. Cockerham , 237 F.3d 1179, (“[A] plea agreement waiver of postconviction right s does not waive the right to bring a § 2255 petition based on ineffective assist ance of counsel claims challenging the validity of the plea or the waiver. Collateral attacks based on ineffective assistance of counsel claims that are c haracterized as falling outside that category are waivable.”). The court also conc luded that Jefferson’s Blakely/Bookerclaim was not raised on direct appeal and, therefo re, could not be raised for the first time in his § 2255 because Bookerdoes not apply retroactively to initial habeas petitions. United States v. Bellamy , 411 F.3d 1182, 1186-87 (10th Cir. 2005). In his application for a COA and appellate brief, J efferson asserts the district court erred when it dismissed his claim th at counsel provided ineffective-3-

assistance during negotiation of the plea agreement . Jefferson argues that counsel’s ineffective assistance rendered his plea unknowing and involuntary and, consequently, the waiver is not enforceable. We ag ree with the district court, however, that the waiver is enforceable because the record belies Jefferson’s assertion that his counsel “duped” him into pleadin g guilty. Jefferson argues that his attorney failed to inform him that his sentence could be based on a quantity of cocaine in excess of the 1.1 grams charged in the c ount to which he pleaded guilty. The plea agreement, however, specifically states that Jefferson faced a maximum penalty of 240 months’ imprisonment and contains a provision which reads, “The government takes the position that for purposes of sentencing guidelines computation, the defendant is accountabl e for not less than 500 grams and no more than 1500 grams of cocaine base (crack) , including relevant conduct (USSG § 2D1.1).” Jefferson not only signed the ple a agreement, but he represented that he had discussed its terms with hi s attorney and understood them. In addition, during the plea colloquy the following exchange occurred between Jefferson and the court: The Court: Further, while this plea is being enteredpursuant to a

plea agreement, which I presume will agree–the government will agree to dismiss certain counts aga inst you, those counts or any illegal conduct reasonably related to this offense of conviction can still be used against you to determine your sentence . Do you understand that?-4-

Jefferson: Yes, I do. (emphasis added). The record clearly establishes that Jefferson’s ineffective assistance claim lacks merit and that his guilty pl ea was entered knowingly and voluntarily. Accordingly, the waiver contained in the plea is valid and enforceable. See Cockerham , 237 F.3d at 1185. To be entitled to a COA, Jefferson must make “a sub stantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). To make the requisite showing, he must demonstrate “that reasonable juris ts could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate t o deserve encouragement to proceed further.” Miller-El v. Cockrell , 322 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether Jefferson has sati sfied his burden, this court undertakes “a preliminary, though not definitive, c onsideration of the [legal] framework” applicable to each of his claims. Id. at 338. Although Jefferson need not demonstrate his appeal will succeed to be entit led to a COA, he must “prove something more than the absence of frivolity or the existence of mere good faith.” Id. Having undertaken a review of Jefferson’s applicati on for a COA and appellate filings, the district court’s order, and the entire record on appeal pursuant to the framework set out by the Supreme Co urt in Miller-El , this court-5-

concludes that Jefferson is not entitled to a COA. The district court’s resolution of Jefferson’s § 2255 motion is not reasonably subj ect to debate and the issues he seeks to raise on appeal are not adequate to deserv e further proceedings. Accordingly, this court denies Jefferson’s request for a COA and dismisses this appeal. Jefferson’s motion to proceed in forma pauperis on appeal is granted

. Entered for the Court CLERK, COURT OF APPEALS
By Deputy Clerk