*

This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel.

FILED

United States Court of Appeals

Tenth Circuit

May 6, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-6008

TRAVIS EMANUEL BAILEY,

Defendant-Appellant.

(D.C. No. 5:07-CV-01115-R)

(W. D. Oklahoma)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

Defendant Travis Emanuel Bailey, a federal prisoner appearing pro se,

seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(1) in

order to challenge the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. Because Defendant has failed to satisfy

the standards for the issuance of a COA, we deny his request and dismiss the

matter.
2

I.

In August 2004, Defendant pled guilty to one count of possession of a

firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C.

922(g)(3). Defendant’s plea agreement contained the following waiver of

appellate rights:

[D]efendant in exchange for the promises and concessions made by

the United States in this plea agreement, knowingly and voluntarily

waives his right to:

a. Appeal or collaterally challenge his 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. Appeal, collaterally challenge, or move to modify under 18

U.S.C. § 3582(c)(2) or some other ground, his 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. Defendant acknowledges that this waiver remains in

full effect and is enforceable, even if the Court rejects one or

more of the positions of the United States or defendant set

forth in paragraph 7 concerning the application of the U.S.

Sentencing Guidelines[;]

c. It is provided that (i) defendant specifically does not waive

the right to 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 that are held by

the Tenth Circuit or Supreme Court to have retroactive effect.

United States v. Bailey, 187 F. App’x 846, 852 (10th Cir. 2006) (quoting the plea
3

agreement) (alterations in original). 

Defendant appealed his sentence to this court, arguing that (1) the district

court misapplied the United States Sentencing Guidelines (“Guidelines”), (2)

there was insufficient evidence to support enhancements to his sentence, and (3)

his Sixth Amendment rights were violated. In an unpublished opinion, we

affirmed his sentence, holding that the waiver of appellate rights in the plea

agreement precluded Defendant from challenging the district court’s application

of the Guidelines and the sufficiency of the evidence supporting the

enhancements to his sentence. See Bailey, 187 F. App’x at 851-54. We also held

that, although the waiver did not preclude Defendant’s argument under Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005), the Sixth Amendment error at sentencing was harmless. See Bailey, 187

F. App’x at 854-56.

Defendant then filed the instant motion under § 2255, contending that (1)

his trial counsel was ineffective in failing to investigate, discover, and present

exculpatory evidence and evidence of prosecutorial misconduct at sentencing, and

(2) the prosecutor committed misconduct at sentencing in failing to reveal that the

Oklahoma State Bureau of Investigation did not quantify the amount of drugs in a

mixture, and in misrepresenting that there were 3,785 grams of methamphetamine

in a mixture, when the prosecutor knew that the actual quantity of

methamphetamine was much less. 
4

The district court denied Defendant’s motion. The district court concluded

that the waiver in the plea agreement was valid, and that the grounds for relief

cited by Defendant fell within the scope of the waiver. Enforcement of the

waiver, moreover, would not result in a fundamental miscarriage of justice. The

district court thus held that the waiver precluded Defendant from collaterally

challenging his sentence in this fashion. 

Defendant filed a notice of appeal and requested that the district court issue

a COA and grant him leave to proceed on appeal in forma pauperis. The district

court denied both requests. On appeal, Defendant has renewed his request for a

COA and for leave to proceed in forma pauperis.

II.

Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In other words, a federal prisoner may appeal from the denial of a §

2255 motion only if the district court or this court first issues a COA. 28 U.S.C.

§ 2253(c)(1). A COA may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. § 2553(c)(2). In order to

make such a showing, a federal prisoner 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 issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (citation and internal quotation marks omitted).
5

Having reviewed the record, we agree with the district court that 

Defendant’s waiver of his appellate rights was knowing and voluntary. We

further agree with the district court that the waiver bars Defendant’s claims, and

that enforcement of the waiver would not result in a fundamental miscarriage of

justice. See United States v. Hahn, 359 F.3d 1315, 1325-29 (10th Cir. 2004) (en

banc). The waiver in the plea agreement precludes Defendant’s § 2255 motion.

The motion for leave to proceed on appeal in forma pauperis and the

request for a COA are DENIED and the matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge