UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

CARLOS JACKSON, 

Defendant - Appellant. 

No. 14-3210 

(D.C. Nos. 2:05-CR-20018-CM-1 & 

2:14-CV-02142-CM) 

(D. Kan.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

 Carlos Jackson seeks a certificate of appealability (“COA”) to appeal the district 

court’s denial of his 28 U.S.C. § 2255 habeas motion. We deny a COA and dismiss the 

appeal. 

I 

 Jackson was charged with eleven counts related to distribution of cocaine base. 

During plea negotiations, defense counsel sent an email to the prosecutor that referenced 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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

FILED 

United States Court of Appeals 

Tenth Circuit 

January 29, 2015

Elisabeth A. Shumaker 

Clerk of Court

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a potential stipulation. In the email, counsel erroneously stated that the stipulation would 

refer to a certain amount of “cocaine” rather than “cocaine base.” The prosecutor 

rejected the proposed stipulation on other grounds without noting the error. Jackson 

subsequently fired his lawyer, retained new counsel, and several months later pled guilty 

to conspiring to manufacture and distribute 280 grams or more of cocaine base and using 

a firearm in furtherance of a drug crime. His written plea agreement described several 

cocaine base sales by Jackson and his coconspirators to an undercover police officer. It 

also contained a waiver of his right to collaterally attack his sentence. 

Pursuant to his plea agreement, Jackson received a below-Guidelines sentence of 

180 months, which was the applicable mandatory minimum. He did not directly appeal. 

However, Jackson filed a § 2255 motion, alleging ineffective assistance of counsel during 

plea negotiations and at sentencing. The district court concluded that the first claim 

lacked merit, and that the second claim was barred by the waiver of collateral review in 

Jackson’s plea agreement. It declined to issue a COA. The court also denied Jackson’s 

request for an evidentiary hearing. Jackson timely filed a notice of appeal. 

II 

Jackson may not appeal the denial of § 2255 relief without a COA. 28 U.S.C. 

§ 2253(c)(1)(B). We will issue a COA “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard, 

Jackson must demonstrate “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 

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issues presented were adequate to deserve encouragement to proceed further.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). 

 Jackson cannot proceed under § 2255 unless he can avoid the waiver of collateral 

review contained in his plea agreement. United States v. Hahn, 359 F.3d 1315, 1329 

(10th Cir. 2004) (en banc) (per curiam); see also United States v. Pinson, 584 F.3d 972, 

975 (10th Cir. 2009) (applying Hahn to waiver of collateral review). Construing 

Jackson’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 

1991), he raises three issues: (1) the government breached his plea agreement; (2) he 

received ineffective assistance of counsel; and (3) the district court erred by failing to 

grant his request for an evidentiary hearing. 

A

 A waiver of collateral review is not enforceable if the government breaches its 

obligations under a plea agreement. See United States v. Rodriguez-Rivera, 518 F.3d 

1208, 1212 (10th Cir. 2008). We review whether the government breached a plea 

agreement de novo. Id. 

Jackson contends that the government breached his plea agreement because it 

pursued charges related to cocaine base, even though his attorney’s proposed stipulation 

email referenced “cocaine.” A plea agreement must be construed according to what the 

defendant reasonably understood at the time he made the agreement. United States v. 

Altamirano-Quintero, 511 F.3d 1087, 1094 (10th Cir. 2007). Notwithstanding the error 

in his counsel’s email, the record belies Jackson’s assertion that he believed his plea 

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related to cocaine, rather than cocaine base. Jackson was indicted for conspiring to 

manufacture and distribute cocaine base, along with other offenses related to cocaine 

base. His plea agreement clearly identifies the crime of conspiring to manufacture with 

intent to distribute cocaine base, not cocaine. It also contains a detailed description of 

Jackson and his coconspirators selling cocaine base to an undercover police officer on 

several occasions. And the proposed stipulation was in any event rejected by the 

prosecutor. We cannot credit Jackson’s contention that the government somehow 

breached his plea agreement by prosecuting him for the very offense for which he had 

been indicted, and to which he pled guilty. 

B

 “[A] plea agreement waiver of postconviction rights does not waive the right to 

bring a § 2255 petition based on ineffective assistance of counsel claims challenging the 

validity of the plea or the waiver.” United States v. Cockerham, 237 F.3d 1179, 1187 

(10th Cir. 2001). Although Jackson’s claim that his counsel was ineffective for failing to 

object to the alleged breach of his plea agreement is barred by his waiver of collateral 

review, his claim that his counsel was ineffective in plea negotiations survives. 

A petitioner claiming ineffective assistance of counsel must establish “that counsel 

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 

defendant by the Sixth Amendment” and that “the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). 

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Jackson argues that his counsel was ineffective for failing to bring the stipulation 

email containing the word “cocaine” to the district court’s attention. Given that the 

prosecutor rejected the proposed stipulation, and that the indictment, plea agreement, and 

the evidence against Jackson specified cocaine base, counsel’s actions were not deficient. 

To the extent that Jackson argues that his counsel led him to believe that cocaine charges 

were at issue, he fails to explain why his misunderstanding was not remedied when he 

read and signed the plea agreement. 

C

 Finally, Jackson argues that the district court erred by failing to hold an 

evidentiary hearing. We review a district court’s denial of an evidentiary hearing for 

abuse of discretion. United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004). A 

district court need not hold an evidentiary hearing if “the case record conclusively shows 

the prisoner is entitled to no relief.” United States v. Marr, 856 F.2d 1471, 1472 (10th 

Cir. 1988). The district court determined that the existing record conclusively showed 

that Jackson was not entitled to relief. Its decision was not an abuse of discretion. 

III 

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

motion to proceed in forma pauperis is GRANTED. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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