UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JEREMY GARROD,

Defendant–Appellant.

No. 10-3049

(D.C. Nos. 2:09-CV-02349-JWL and 

2:07-CR-20072-JWL-1)

(D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, EBEL, and LUCERO, Circuit Judges. 

Jeremy James Garrod, a federal prisoner proceeding pro se, requests a certificate 

of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 

habeas petition.1

 We deny a COA and dismiss the appeal. 

I 

 Garrod pled guilty to one count of conspiracy to distribute more than fifty grams 

 *

 This order is not binding precedent except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Because Garrod proceeds pro se, we liberally construe his application for a COA. 

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 19, 2010

Elisabeth A. Shumaker 

Clerk of Court

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of methamphetamine in violation of 21 U.S.C §§ 841 and 846 pursuant to a plea 

agreement. Under the plea agreement, Garrod waived his right to appeal or collaterally 

attack his conviction and sentence if the sentence fell within the United States Sentencing 

Guidelines (“USSG”) range as “determined appropriate by the court.” In exchange, the 

government agreed to request a two-to-three level reduction for acceptance of 

responsibility, provided Garrod continued to manifest acceptance of responsibility. In 

addition, the government agreed not to request an upward departure, provided Garrod did 

not request a downward departure. The agreement further noted that the government 

maintained sole discretion to determine whether to request a sentence reduction for 

substantial assistance pursuant to USSG § 5K1.1. 

Prior to sentencing, Garrod moved for a downward departure, alleging that the 

government had prevented him from providing substantial assistance in bad faith. 

Concluding that Garrod’s pre-sentencing actions showed a lack of acceptance of 

responsibility, the government declined to move for a reduction in offense level. 2 The 

court nevertheless included a two-level reduction for acceptance of responsibility in 

calculating Garrod’s USSG range. Garrod was sentenced to thirty years’ imprisonment—

at the low end of his advisory range. 

 2

 The government cited Garrod’s move for a downward departure, dispute as to the 

scope of his role in the conspiracy, violations of release conditions, and challenges to 

relevant conduct (which were frivolous in the government’s view). 

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 Garrod did not directly appeal his conviction or sentence, but he filed a § 2255 

petition in federal district court alleging that the government breached the plea agreement 

and that his counsel was ineffective. The government moved to enforce Garrod’s waiver 

of his right to collaterally attack his sentence. Determining that the government did not 

breach the plea agreement, that some of Garrod’s claims were foreclosed by the plea 

agreement, and that his remaining claims lacked merit, the district court granted the 

government’s motion and dismissed Garrod’s petition. Garrod timely appealed that 

dismissal.3

II 

Because the district court did not grant him a COA, Garrod may not appeal the 

district court’s decision absent a grant of a COA by this court. § 2253(c)(1)(B). To 

obtain a COA, Garrod must show “that reasonable jurists 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 to deserve encouragement to proceed further.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). 

A 

Garrod contends the government breached the plea agreement when it: (1) failed 

 3

 Garrod filed a notice of appeal, along with a motion to extend the time to file a 

notice of appeal, fifteen days after his sixty-day deadline to appeal expired. See Fed. R. 

App. P. 4(a)(1)(B). Determining there was good cause and excusable neglect, the district 

court granted an extension of time to file a notice of appeal pursuant to Federal Rule of 

Appellate Procedure 4(a)(5). Accordingly, Garrod’s appeal was timely. 

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to recommend a reduction for an acceptance of responsibility; and (2) requested a life 

sentence. Because Garrod did not advance these claims in a direct appeal, his habeas 

petition cannot succeed unless he can show cause for and prejudice resulting from this 

failure. See United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). Garrod 

alleges that he asked his attorney to file a direct appeal but his attorney failed to do so, 

allegations which, if proven, could demonstrate cause. See Abels v. Kaiser, 913 F.2d 

821, 823 (10th Cir. 1990). However, any reasonable jurist would conclude that Garrod 

has failed to demonstrate prejudice. 

In his application for COA, Garrod claims that the government had a 

nondiscretionary duty to request a downward adjustment in offense level for acceptance 

of responsibility. However, the plea agreement expressly conditioned the government’s 

obligation upon Garrod’s “continuing manifestation of acceptance of responsibility as 

determined by the United States.” Garrod does not allege facts suggesting that the 

government declined to seek a reduction based on bad faith or improper motive and thus 

cannot prevail on this claim. 

Garrod also contends the government’s request for a life sentence constituted an 

upward departure prohibited by the plea agreement. Even assuming that the 

government’s request was a motion for an upward departure, Garrod concedes that the 

plea agreement permitted the government to so move if he requested a downward 

departure and admits that his attorney moved for a downward departure. Garrod argues 

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that he should “not be held responsible for his attorney’s actions.” This argument lacks 

merit. See Vermont v. Brillon, 129 S. Ct. 1283, 1290-91 (2009) (defense counsel’s 

actions in furtherance of litigation are attributable to the defendant). Because Garrod 

moved for a downward departure, the plea agreement entitled the government to move 

for an upward departure. 

B 

 Garrod further alleges his counsel was ineffective for failing to advise him 

regarding alleged errors in the calculation of his sentence, and by failing to inform him 

that the indictment was multiplicitous. Neither claim provides ground for relief. We 

have consistently held that a “miscalculation or erroneous sentence estimation by a 

defense counsel is not a constitutionally deficient performance rising to the level of 

ineffective assistance of counsel.” United States v. Gordon, 4 F.3d 1567, 1570-71 (10th 

Cir. 1993); accord United States v. Silva, 430 F.3d 1096, 1099 (10th Cir. 2005). Further, 

no reasonable jurist could dispute the district court’s conclusion that the indictment was 

not multiplicitous. See United States v. Wood, 57 F.3d 913, 920 n.3 (10th Cir. 1995) 

(conspiracy charge under 21 U.S.C. § 846 and underlying possession charge not 

multiplicitous). Counsel’s failure to advise Garrod on this issue was no failure at all.4

 

 4

 Garrod also argues that his counsel was ineffective for failing to object to 

allegedly erroneous information being considered during sentencing. Because this 

alleged ineffectiveness does not “pertain[] to the validity of the plea,” Garrod may not 

Continued . . . 

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Garrod makes two final claims that merit only brief mention. First, he alleges that 

trial counsel was ineffective for failing to file a direct appeal. But by his own admission, 

he did not specifically argue this issue in his § 2255 petition. We therefore decline to 

consider the issue. See O’Connor v. City & County of Denver, 894 F.2d 1210, 1214 

(10th Cir.1990). Second, he argues counsel’s cumulative errors warrant relief. Because 

Garrod has not demonstrated error, relief on this ground would be inappropriate. See

Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). 

III 

For the foregoing reasons, we DENY a COA and DISMISS the appeal. 

Entered for the court, 

Carlos F. Lucero 

Circuit Judge 

 

assert this claim in light of his waiver of collateral remedies. United States v. 

Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). 

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