United States v. Hill ( 2015 )


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  •                                                                                FILED
                                                                       United States Court of Appeals
                             UNITED STATES COURT OF APPEALS                    Tenth Circuit
    
                                   FOR THE TENTH CIRCUIT                   December 29, 2015
                               _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    UNITED STATES OF AMERICA,
    
             Plaintiff - Appellee,
    
    v.                                                         No. 15-5003
                                                (D.C. Nos. 4:14-CV-00439-GKF-FHM and
    KELLY MAURICE HILL,                                 4:10-CR-00165-GKF-1)
                                                               (N.D. Okla.)
             Defendant - Appellant.
                             _________________________________
    
                ORDER DENYING CERTIFICATE OF APPEALABILITY *
                        _________________________________
    
    Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                     _________________________________
    
         Kelly Hill, a federal prisoner proceeding pro se, seeks a certificate of
    
    appealability (COA) to appeal the district court’s order denying his habeas corpus
    
    petition filed under 28 U.S.C. § 2255. For all reasons stated below, we deny a COA
    
    and dismiss this appeal.
    
                                         BACKGROUND
    
    A. Events Leading to Guilty Plea
    
         On October 12, 2010, a grand jury in the Northern District of Oklahoma returned
    
    an indictment charging Hill with conspiracy to distribute 100 kilograms or more of
    
    marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(vii). A few months
    
         *
         This order is not binding precedent, except under the doctrines of law of the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.
    before this, Hill—represented by retained counsel, Steven Scharg—began
    
    cooperating with the government, attending several debriefing sessions, and
    
    providing information.
    
       On February 8, 2010, Hill and his counsel flew together from Michigan (where
    
    Hill lived) to Oklahoma for Hill to enter a guilty plea to the charges. Once there,
    
    Hill told his counsel that he no longer wished to plead guilty. Responding to the
    
    district court’s questions, the prosecutor said that Hill had “basically entered into a
    
    verbal plea agreement, if you will, well over seven months ago” and referenced
    
    earlier debriefing sessions with Hill sometime before June 2010 through about
    
    December 14, 2010. R. vol. III at 6–7, 12. The government then told the court that
    
    on January 5, 2011, “one of the principal witnesses in my case was murdered in
    
    Detroit and another witness, deceased, wife was attempted murdered.” R. vol. III at
    
    7. He further advised the court that he “had another witness who was ambushed and
    
    by mistaken identity his father was grave – not gravely, but seriously injured.” Id. In
    
    addition, the prosecutor told the court that he intended to supersede Hill’s indictment
    
    to add defendants.
    
       Having heard these responses to its questioning, the district court called counsel
    
    to the bench and asked Hill’s counsel whether “given that there is no cooperation
    
    agreement here, is the concern of Mr. Hill that he might be perceived, if he does not
    
    go to trial, as having cooperated?” Id. at 8. Hill complains in his habeas proceedings
    
    about Scharg’s response to the court’s question. Scharg responded, “Your Honor, I
    
    think his position is he thinks that the government doesn’t have enough witnesses to
    
                                              2
    proceed against him in trial at this point,” continuing, “[a]nd he just thinks they
    
    can’t prove his case being beyond a reasonable doubt.” Id. at 8–9. The prosecutor
    
    then told the court that he had heard that “Hill’s mother, who is also an unindicted
    
    coconspirator, found a shoe box on her car hood in Detroit with two dead rats in it
    
    with a note that allegedly said, ‘Your son’s next.’” Id. at 10. The prosecutor said that
    
    the two shootings had similarities, apparently both involving AK-47s. The
    
    prosecutor asked that Hill now be detained. The district court sent that question to
    
    the magistrate judge who had held the earlier detention hearing when Hill was
    
    cooperating.
    
       On February 9, 2011, the magistrate judge issued a detention order detaining Hill
    
    until a further hearing could be held on February 15, 2011. In its order, the
    
    magistrate judge reviewed a number of matters brought to his attention. In
    
    particular, he noted that a husband and wife (Corry and LaTonya Thomas) charged
    
    in a case related to Hill’s had agreed to testify against Hill regarding an attempted
    
    shooting at their home (with their two young children) where gunmen fired 19
    
    rounds from an AK-47 into their master bedroom. Fortunately, no one was injured.
    
    A federal agent then flew to Detroit to meet with the couple, who agreed to go into
    
    custody and identified Hill as the person they believed responsible for the shooting.
    
    On January 5, 2011, before entering protective custody, the couple returned home
    
    for some belongings. Once there, two or three men firing guns (one apparently an
    
    AK-47) ambushed them. These gunmen killed the husband and wounded the wife’s
    
    
    
                                               3
    mother, but the wife somehow escaped injury.1 In addition, the magistrate judge
    
    noted that on January 11, 2011, the father of another witness in Hill’s case (witness
    
    Joshua Wheeler) was ambushed with gunfire while driving his son’s car. This left
    
    just one of the government’s substantive witnesses against Hill untargeted for attack.
    
    Also, the magistrate judge noted that law-enforcement officers had detained Hill for
    
    several days after the attacks but later released him uncharged. Finally, the
    
    magistrate judge said that two confidential informants told the Drug Enforcement
    
    Agency (DEA) office in Detroit that they had heard that Hill had taken credit for the
    
    shootings. The federal prosecutor did not learn of Hill’s alleged statements until
    
    February 7, 2011, and soon after filed the motion for detention.
    
    B. Hill Enters a Guilty Plea
    
       By March 7, 2011, Hill had apparently rethought his decision not to plead guilty.
    
    On that day, he filed a “Petition to Enter Plea of Guilty and Order Entering Plea.” In
    
    the petition, Hill wrote his factual basis as follows: “I, Kelly Hill, conspired with
    
    other[s] to distribute marijuana in the Detroit[,] Michigan area. I conspired with
    
    others to have marijuana transported from Phoenix[,] Arizona to Detroit, Michigan
    
    starting in Nov[.] 2008 through December 2009.” R. vol. II at 64. In response to the
    
    petition form’s bolded direction that he “[l]ist any and all advice or
    
    recommendations by your attorney upon which you rely in entering your plea of
    
       1
        The husband and wife were the same people stopped on June 22, 2009 by the
    Oklahoma Highway Patrol, carrying 265 kilograms of marijuana back to Detroit.
    They immediately began cooperating with law enforcement. They had transported
    about 5 loads of marijuana for Hill. Hill put money on their credit cards or gave
    them cash for the trips.
                                              4
    guilty,” Hill wrote, “I made my own decision to plead guilty.” Id. The petition form
    
    contained sections captioned “Waiver of Constitutional Rights,” and “Minimum
    
    Sentence and Mandatory Minimum Sentence,” the second advising Hill that his
    
    offense was punishable for 5 to 40 years of imprisonment, a fine up to $2,000,000,
    
    and a term of supervised release of at least 4 years. In a “Sentencing” portion of the
    
    petition form, Hill wrote “None” in response to a direction to “[i]nsert any promises
    
    or concessions made to the defendant or to his/her attorney.” Id. at 67. He further
    
    acknowledged knowing that “the sentence I will receive is solely a matter within the
    
    control of the Judge. I hope to receive lenience, but I am prepared to accept any
    
    punishment permitted by law which the Court sees fit to impose.” Id.
    
       As part of this same petition form, Scharg was also required to sign after
    
    agreeing (1) that Hill’s declarations were accurate and true, (2) that he had advised
    
    Hill of the provisions of advisory guideline sentencing, (3) that Hill understood that
    
    the court could impose a non-guideline sentence, and (4) that in his opinion Hill
    
    would voluntarily and knowingly plead guilty. For a direction to identify any
    
    “predictions or promises to the defendant concerning any sentence the Court may
    
    award,” Scharg wrote, “N/A.” Id. at 68.
    
       In his habeas petition, Hill relies heavily on the following notation on the bottom
    
    of the first page of the petition form: “57-71 Level 25.” Id. at 63. It appears that the
    
    number originally was 28 and a 5 was inserted over the 8. From the petition itself,
    
    we are unable to tell who wrote that notation or when it was written.
    
    
    
                                               5
       Also on March 7, 2011, in tandem with the petition form, Hill pleaded guilty to
    
    the charged count of conspiracy to possess with intent to distribute and conspiracy to
    
    distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846 and
    
    841(a)(1), (b)(1)(B). Under his written plea agreement, Hill waived both his direct-
    
    appeal and collateral-attack rights. Specifically, he agreed to “waive[] the right to
    
    collaterally attack the conviction and sentence pursuant to 28 U.S.C. § 2255, except
    
    for claims based on ineffective assistance of counsel which challenge the validity of
    
    the guilty plea or this waiver[.]” United States v. Hill, No. 4:10-CR-00165-GKF,
    
    Doc. No. 31, at 3.2 For this waiver paragraph, the government took the precaution of
    
    having Hill sign directly below the waiver paragraph, attesting this statement: “The
    
    defendant expressly acknowledges that counsel has explained his appellate and post-
    
    conviction rights; that defendant understands his rights; and that defendant
    
    knowingly and voluntarily waives those rights as set forth above.” Id.
    
       After   signing   and    dating   the   plea   agreement,    Hill   signed   another
    
    acknowledgment at the end of his plea agreement:
    
       I have read this agreement and carefully reviewed every part of it with my
       attorney. I understand it, and I voluntarily agree to it. Further, I have consulted
       with my attorney and fully understand my rights with respect to sentencing
       which may apply to my case. No other promises or inducements have been
       made to me, other than those contained in this pleading. In addition, no one
       has threatened or forced me in any way to enter into this agreement. Finally, I
       am satisfied with the representation of my attorney in this matter.
    
    
       2
         We take judicial notice of materials from the district court’s habeas record and
    the record on appeal from Hill’s direct-appeal case. See Anderson v. Cramlet, 
    789 F.2d 840
    , 845 (10th Cir. 1986) (“Judicial notice is particularly applicable to the
    court’s own records of prior litigation closely related to the case before it.”).
                                               6
    Id. at 15. Moreover, in the plea agreement the government also had Hill’s attorney
    
    sign his own acknowledgment, stating as follows:
    
       I am counsel for the defendant in this case. I have fully explained to the
       defendant the defendant’s rights with respect to the pending Indictment.
       Further, I have reviewed the provisions of the Sentencing Guidelines and
       Policy Statements and I have fully explained to the defendant the provisions of
       those Guidelines which may apply in this case. I have carefully reviewed every
       part of this plea agreement with the defendant. To my knowledge, the
       defendant’s decision to enter into this agreement is an informed and voluntary
       one.
    
    Id. at 16.
    
       In addition, at Hill’s change-of-plea hearing, the district court thoroughly
    
    reviewed the plea agreement with Hill before hearing his factual basis and accepting
    
    his guilty plea. Hill also told the court that he had discussed the Indictment with
    
    Scharg and was fully satisfied with his attorney’s representation and advice. Hill
    
    further told the court that he had read and discussed the plea agreement with Scharg
    
    before signing it and that the agreement represented in its entirety his
    
    understandings with the government. Hill added that he understood the plea
    
    agreement’s terms and that no one had made any promises different from those
    
    stated in the plea agreement to gain his guilty plea. In evaluating Hill’s ability to
    
    understand the proceedings, the court accepted Hill’s statement that he was a student
    
    needing just 37 credits to graduate from Wayne State University.
    
       After reviewing the plea agreement’s terms with Hill, the court then directed
    
    Hill’s attention to possible punishments. The district court explained to Hill—and
    
    verified from Hill that he understood—that the court could sentence him anywhere
    
    
                                             7
    between 5 and 40 years. The court told Hill that it could not determine his sentence
    
    until reviewing the presentence report (PSR) and after hearing his and the
    
    government’s objections to the PSR. The court advised Hill that its sentence may
    
    differ from any estimate his attorney may have given him, and that it could impose
    
    any reasonable sentence not greater than the statutory maximum or less than the
    
    statutory minimum. Hill acknowledged both of these facts. Hill also agreed that he
    
    understood that the court could impose the same punishment whether he pleaded
    
    guilty or instead was convicted by a jury.
    
       Next, the district court reviewed with Hill the plea agreement’s waiver
    
    provisions. The court reviewed each subparagraph of the waiver provision so that it
    
    could “satisfy [it]self that you understand what exactly you’re giving up in regard to
    
    these rights.” Hill, No. 4:10-CR-00165-GKF, Doc. No. 38, at 9. Hill acknowledged
    
    that he and his retained counsel had discussed the waiver of appellate and post-
    
    conviction rights. After doing so, the district court again assured itself that Hill
    
    understood he was giving up his collateral-attack rights.
    
       Next, the district court invited the government to present the facts it would have
    
    proved at trial. The prosecutor began with a June 2009 traffic stop in Oklahoma
    
    where police seized 565 pounds of marijuana headed for Michigan from Arizona.
    
    Those arrested [the Thomases] cooperated with law enforcement, and said they had
    
    made five trips to Phoenix for Hill. Typically, Hill would purchase airline tickets for
    
    them and him from Michigan to Las Vegas or Phoenix and then provide funds on
    
    their debit cards to Detroit, where Hill would meet them. Hill then would distribute
    
                                                 8
    the marijuana to others for money. The government was ready to corroborate this
    
    with airline, hotel, and rental-car records. Finally, the prosecutor said that the
    
    government was prepared to prove and rely on an Oklahoma highway-patrol stop
    
    where law enforcement seized $198,000 of marijuana-buy money that was heading
    
    from Detroit to Phoenix to buy marijuana. This was representative of several other
    
    money shipments to buy marijuana for sale in Detroit.
    
       Taking Hill’s guilty plea immediately after the prosecutor’s summary of its
    
    evidence, the court again assured itself by questioning Hill that his “guilty plea and
    
    the waivers of [his] rights [were] made voluntarily and completely of [his] own free
    
    choice, free of any force or threats or pressures from anyone.” Hill, No. 4:10-CR-
    
    00165-GKF, Doc. No. 38, at 20. Hill also stated that he was not “relying on any
    
    representations or promises which are not clearly and specifically set forth in the
    
    written plea agreement.” Id.
    
    C. Hill’s Pre-Sentencing Events
    
       On May 31, 2011, the probation office approved Hill’s Revised PSR. Its
    
    sentencing recommendations were straightforward. Because Hill’s offense had
    
    involved more than 400 kilograms of marijuana (543.55 kilograms), his base offense
    
    level was 28. In addition, the probation office recommended a 4-level increase for
    
    Hill’s role in the offense, specifically finding that he was an organizer or leader of
    
    criminal activity involving five or more participants.3 In addition, the probation
    
    
       3
         As participants, the government identified people Hill paid to transport
    marijuana and cash between Arizona and Michigan, namely, the Thomases, Aaron
                                              9
    office recommended against any reduction for acceptance of responsibility, noting
    
    that Hill continued after detention to use mail and telephones to “advise co-
    
    conspirators on hiding and concealing assets and drug proceeds, and also gave
    
    directives on carrying out transactions with other co-conspirators.” United States v.
    
    Hill, No. 12-5192, R. vol. IV at 105. Using information learned from Hill’s recorded
    
    jail calls, agents obtained a search warrant for his girlfriend’s house and a storage
    
    unit, where they seized incriminating letters, drug notations, and cash. Id. After the
    
    search, Hill called his girlfriend to tell her not to keep letters and to delete two
    
    phone numbers from his cell phone. In addition, the PSR calculated Hill’s criminal
    
    history category as II based on earlier convictions for larceny and fleeing police.
    
    The revised PSR recommended a Guidelines range of 135–168 months’
    
    imprisonment.
    
       On June 3, 2011, five days before his scheduled sentencing, Hill filed a pro se
    
    letter with the court. Having seen the PSR’s recommendations, Hill for the first time
    
    complained about Scharg. Directly contrary to his representations to the court at his
    
    change-of-plea sentencing, Hill now claimed that Scharg and the prosecutors had
    
    promised him a sentence of between 57 and 71 months. He also claimed that he had
    
    not fully understood his post-sentencing waivers, because Scharg had not explained
    
    Cook (who together with Hill’s grandmother was stopped by the Oklahoma Highway
    Patrol in a van rented by Hill’s mother with $198,000 Hill had put in a TV set for
    marijuana purchase). In addition, Hill paid Joshua Wheeler to store drug proceeds
    and to transport money to Phoenix at Hill’s direction. In addition, Hill paid Yusuf
    Rashid to distribute marijuana and cocaine for him. Finally, Hill used his girlfriend,
    Deja Howard, to try to gather his money while he was detained pending trial. Hill
    also used Samuel Clay, his brother, to help collect money while Hill was detained.
                                             10
    them to him. Again contrary to his earlier statements to the court, Hill claimed that
    
    he had been tricked into signing his plea agreement because he had insufficient time
    
    to review it.
    
       The district court construed this letter as a motion for new counsel and as a
    
    motion to withdraw his guilty plea. In evaluating whether Hill’s letter merited relief,
    
    the court looked to the seven factors set out in United States v. Garcia, 
    577 F.3d 1271
    , 1273–74 (10th Cir. 2009), and, after applying them, enforced the plea
    
    agreement. In doing so, the district court referred to and relied on several of Hill’s
    
    statements at his change-of-plea hearing that were directly contrary to his letter’s
    
    claims.
    
       On June 1, 2012, the probation office issued an Addendum to the PSR,
    
    addressing both parties’ objections. The government stated two objections. First, it
    
    argued that the probation office had erred by not adding two offense levels under
    
    U.S.S.G. § 3C1.1 for Hill’s obstruction of justice. It relied on evidence from Hill’s
    
    detention hearings about his involvement in the shootings against the Thomases and
    
    Wheeler’s father in Detroit. It referenced Hill’s supposed statement on February 8,
    
    2011, that he wanted a trial because “there would not be any witnesses left to testify
    
    at trial.” R. vol. II at 36. The government also relied on several recorded jail calls
    
    between Hill and his girlfriend directing her to collect and hide drug proceeds,
    
    remove evidence, and conceal assets and cash. Even so, the probation office still
    
    refused to impose the obstruction-of-justice enhancement, contending that Hill’s
    
    activity “must have materially hindered the official investigation or prosecution of
    
                                              11
    the instant offense or sentencing of the defendant.” Hill, No. 12-5192, R. vol. IV at
    
    115. Second, the government argued that Hill was ineligible for an acceptance-of-
    
    responsibility reduction. The probation officer noted that the Revised PSR no longer
    
    awarded Hill that reduction.
    
       Hill objected on multiple grounds: first, to the government’s use of Hill’s
    
    information provided in Rule 11 proffers; second, to the weight of the marijuana the
    
    PSR attributed to his involvement in the offense; third, to the role-in-the-offense
    
    enhancement under U.S.S.G. § 3B1.1; and, fourth, to the failure in the Revised PSR
    
    to award him any levels for acceptance of responsibility under § 3E1.1. The
    
    probation office rejected each objection.
    
    D. Hill’s Sentencing Hearings
    
       On June 8, 2012, the district court held what turned out to be a first sentencing
    
    hearing. By this time, Julia O’Connell had replaced Scharg as Hill’s counsel. The
    
    government first called Yusuf Rashid to testify. Rashid admitted two previous
    
    felony convictions for possessing marijuana with intent to deliver, one in 2003 and
    
    the other in 2010. Rashid testified that he had known Hill for about three years, first
    
    as one of his marijuana buyers and later as his marijuana supplier. He said that he
    
    had begun buying 20-pound bales of marijuana from Hill and increased to buying as
    
    much as 80-pound bales, paying $925 to $975 a pound. He estimated about 20 to 25
    
    total buys from Hill. He also testified to buying from Hill about 3 or 4 kilograms of
    
    cocaine.
    
    
    
                                                12
       Rashid recalled a time when Hill visited his home and visited with him in the
    
    basement for privacy.4 During this visit, Hill told him that he was looking for
    
    someone to “take care of this fat guy and his—and a girl down in—it was down in
    
    Ecorse.” Hill, No. 12-5192, R. vol. II at 33–34. After Rashid said he didn’t know
    
    anyone to do that, Hill took him to a store and bought him a cell phone to call him if
    
    he found someone or needed to talk about buying drugs. Rashid understood that Hill
    
    wanted the fat man and girl murdered before Christmas because “the guy was
    
    supposed to go in protective custody.” Id. at 35. He described Hill as calm and
    
    serious. He said that Hill mentioned a $5,000 price for the murder of the fat guy.
    
       The government next called DEA Agent Jillian Fitch to testify. She testified that
    
    she interviewed Hill in 2010. She recalled that on January 4, 2011, she received a
    
    call from Agent Cory Hallum, telling her about the shooting at the Thomas house in
    
    Ecorse, Michigan. She referenced the 19 rounds fired into the Thomases’ master
    
    bedroom. She said that on January 5, 2011, Agent Hallum met with Mr. Thomas and
    
    that Mr. Thomas was shot to death later that day when he and his wife and her
    
    mother returned to the house to collect belongings before being relocated. Men with
    
    assault rifles ambushed the three, killing Mr. Thomas and also shooting and injuring
    
    Mrs. Thomas’s mother.
    
       The government then directed Agent Fitch’s attention to Hill’s recorded jail calls.
    
    Agent Fitch testified about Hill’s call to his girlfriend on February 8, 2011, the day
    
    
       4
         At the second phase of the sentencing hearing, the government clarified that
    this meeting had occurred in December 2010.
                                              13
    he was detained. During that call, he directed his girlfriend to take a phone to “Fat
    
    Boy” and to take the “275” and “297” to a “safety security box” or to where they
    
    had previously been kept. Based on her experience and training, Agent Fitch
    
    testified that “275” likely referred to $275,000. Based on the jail calls, DEA agents
    
    in Detroit were able to surveil Hill’s girlfriend and her mother—sometimes in real
    
    time—as they drove to different locations in accordance with Hill’s directions.
    
       Using the information from Hill’s recorded jail calls and other information
    
    gained in the investigation, Agent Fitch obtained two search warrants for residences.
    
    She testified that agents seized certain letters from Hill at both locations. In addition,
    
    agents seized $25,000 in currency, a small amount of marijuana, and a folder with
    
    notes and ledgers. One document agents seized was Hill’s February 17, 2011 letter
    
    to his girlfriend directing her to see Fat Boy and get “440” (referring to $440,000)
    
    and go straight home. In the letter, he told her to find a place where robbers or the
    
    police wouldn’t find the “440.” In another letter, Hill directed his girlfriend to wrap
    
    it like he used to after she got it from Fat Boy and to have her mother put it in four
    
    different banks, inside safety deposit boxes. He told her to keep “30” from the “380”
    
    and to use a shrink-wrap machine to wrap and divide it. Hill directed her to see Fat
    
    Boy in person because he believed that agents tapped her phone. Agent Fitch also
    
    testified about Hill’s recorded jail call on March 9, 20115 to his girlfriend in which
    
    he expressed anger that she had kept letters from him that the police were able to
    
       5
          This jail call occurred after Hill had pleaded guilty, violating the plea
    agreement’s condition on acceptance-of-responsibility levels, namely, that he
    continue to manifest acceptance of responsibility as determined by the United States.
                                               14
    find and take. He later told her to read a letter and then burn it. Again from jail, Hill
    
    later instructed his girlfriend to retrieve a telephone from a coat pocket and erase
    
    two numbers from it. During cross-examination of Agent Fitch, Ms. O’Connell
    
    asked the court for a moment, it appearing that she might be suffering a serious
    
    medical problem. After she had left to seek treatment, the government advised that
    
    its case agent was going to Afghanistan for three weeks and asked for a setting on
    
    August 2, 2012, to continue the sentencing. The court tentatively set sentencing to
    
    continue on that date.
    
       On August 2, 2012, the court held the second part of the sentencing hearing.
    
    After Ms. O’Connell finished cross-examining Agent Fitch, the government called
    
    DEA Agent Cory Hallum. Agent Hallum testified that he was the primary case agent
    
    on Hill’s case since 2009. He reviewed in detail Hill’s role in the conspiracy and
    
    roles he assigned others before and during his detention.
    
       Because Hill chose not to call any witnesses, the court then turned to the parties’
    
    objections to the PSR. Ms. O’Connell waived Hill’s argument about drug weight,
    
    agreeing that her argument about the conversion of cash amount to marijuana
    
    amounts would not affect the base offense level. She described her earlier objection
    
    about the government’s use of proffer information as “neither here nor there.” She
    
    continued to object to the role-in-offense enhancement and the failure to provide a
    
    reduction for acceptance of responsibility. Addressing the acceptance-of-
    
    responsibility argument first, Ms. O’Connell argued that “[o]nce he accepted that
    
    plea agreement, he did what was required of it and he continued from that moment
    
                                               15
    forward to manifest acceptance of responsibility.” Hill, No. 12-5192, R. vol. III at
    
    67. Moving to the role-in-offense enhancement, she argued that Hill was not a leader
    
    or organizer, but instead one with “a reduced management or supervisory role in the
    
    offense.” Id. For this reason, she argued that “the more appropriate role in the
    
    offense would be found in [§] 3B1.1(b).” Id. at 68. Had Hill prevailed in that regard,
    
    he would have received a three-level enhancement instead of the PSR’s
    
    recommended four levels.
    
       The district court rejected both of Hill’s objections. First, for the role-in-offense
    
    objection, the court concluded that Hill was a leader or organizer of criminal activity
    
    involving 5 or more participants. It noted his role in providing others with cash,
    
    automobiles, accommodations, and drop-off points for cars, money, and drugs. The
    
    court found that after delivering the marijuana to his buyers, Hill would pay a
    
    smaller portion of the proceeds to the other participants. Second, for the acceptance-
    
    of-responsibility objection, the court noted that after Hill pleaded guilty on March 7,
    
    2011, he called his girlfriend from jail and told her to read and burn particular letters
    
    from him and to delete two phone numbers for a cell phone inside his coat pocket.
    
       Next, the court addressed the government’s objection that the PSR had not
    
    included an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The
    
    court agreed with the government, relying in part upon its finding by a
    
    preponderance of the evidence from Yusuf Rashid’s testimony that Hill offered to
    
    pay $5,000 to murder a man who was about to enter protective custody. Despite this
    
    finding, the court sentenced Hill at the low end of his resulting advisory range of
    
                                               16
    168 to 210 months of imprisonment (rejecting the government’s recommendation for
    
    the high end). The court did so after Hill apologized to the court for committing the
    
    charged offense. During his remarks, Hill said to his counsel, Ms. O’Connell, “You
    
    did a great job today.” Hill, No. 12-5192, R. vol. III at 76. Nowhere in his remarks
    
    to the court did Hill claim his present or past counsel had deceived him or otherwise
    
    poorly performed. Nor did Hill protest his 168-month sentence as beyond what his
    
    former counsel, Mr. Scharg, and the government had promised him before he
    
    pleaded guilty.
    
    E. Hill’s Direct Appeal
    
       Notwithstanding his appeal waiver, Hill appealed “his sentence,” seeking
    
    consideration and relief on grounds that the government had breached his plea
    
    agreement. United States v. Hill, 568 F. App’x 549, 552 (10th Cir. 2014)
    
    (unpublished). Reviewing for plain error, this court agreed with Hill and found that
    
    the government had breached its plea agreement in one respect. The Hill court
    
    focused on paragraph 11 of the plea agreement, particularly on one sentence reading,
    
    “The obligations of the Government herein, relative to acceptance of responsibility
    
    are contingent upon the defendant’s continuing manifestation of acceptance of
    
    responsibility as determined by the United States.” Id. at 553 (emphasis in original).
    
    Because the government had referenced and in part relied upon pre-plea conduct of
    
    Hill’s to support the obstruction-of-justice enhancement under § 3C1.1, we
    
    concluded that it had run afoul of its agreement to deny an acceptance-of-
    
    responsibility reduction only for post-plea obstruction of justice (the Hill court’s
    
                                             17
    treating “continuing” as reaching obstructive conduct occurring only after Hill’s
    
    guilty plea on March 7, 2011).6 Id. Even so, the court denied Hill any relief,
    
    concluding that he could not meet the third prong of the plain-error analysis—that is,
    
    he could not show that the error affected his substantial rights. Id. at 553–54. He
    
    failed because the government had also presented post-plea obstructive conduct that
    
    equally justified the obstruction-of-justice enhancement under U.S.S.G. § 3C1.1. We
    
    affirmed Hill’s 168-month sentence.
    
    F. Hill’s Habeas Petition in District Court
    
       On September 22, 2014, Hill filed in the district court an amended motion under
    
    28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In support of his
    
    motion, his accompanying memorandum alleged three grounds supporting his
    
    petition:
    
       Ground one: Ineffective Assistance of Trial Counsel
    
       Trial counsel was ineffective when, prior to the plea negotiation, counsel
       secretly provided the government with fabricated incriminating information
       against the Defendant causing the Defendant to involuntarily waive his right
       to collaterally attack his sentence.
    
       Ground two: Ineffective Assistance of Sentencing Counsel
    
    
    
       6
         The government’s problem was its plea-agreement wording, not anything in the
    sentencing guideline. Under the guideline, a defendant obstructing justice is
    generally ineligible for acceptance-of-responsibility levels whether the obstructive
    conduct comes before or after entry of a guilty plea: “Conduct resulting in an
    enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice)
    ordinarily indicates that the defendant has not accepted responsibility for his
    criminal conduct. There may, however, be extraordinary cases in which adjustments
    under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, n.4.
                                             18
       Sentencing counsel was ineffective when failing to inform the Defendant he
       could testify at sentencing in his own defense against allegations of criminal
       conduct.
    
       Ground three: Ineffective Assistance of Counsel
    
       Whether counsel was ineffective for failing to request that the court make a
       finding of breach of the plea agreement by the Petitioner or the Government
       before allowing the Government to alter its sentencing recommendation.
    
    R. vol. I at 136. In evaluating these claims, the district court directed its attention to
    
    Hill’s waiver of his right to seek habeas relief under § 2255:
    
       In consideration of the promises and concessions made by the United States in
       this plea agreement, the defendant knowingly and voluntarily agrees to the
       following terms:
    
                                          ***
    
              d. The defendant waives the right to collaterally attack the conviction
       and sentence pursuant to 28 U.S.C. § 2255, except for claims based on
       ineffective assistance of counsel which challenge the validity of the guilty
       plea or this waiver[.]
    
    R. vol. I at 230.
    
       Next, the district court examined Hill’s habeas claims against this waiver
    
    language to determine what claims, if any, survived Hill’s agreed waiver. It found
    
    one survivor, concluding that Hill’s first claim alleging ineffective assistance of
    
    counsel during plea negotiations challenged the validity of the plea agreement and
    
    thus escaped the plea agreement’s waiver. See United States v. Cockerham, 
    237 F.3d 1179
    , 1184 (10th Cir. 2001) (excluding from an appellate waiver ineffective-
    
    assistance-of-counsel claims “not relating to the validity of the plea, i.e., the
    
    negotiation or entering of the plea and waiver”). But the district court determined
    
    
                                                19
    that Hill’s other claims—based on alleged ineffective assistance of counsel at
    
    sentencing—did not challenge the validity of the plea agreement’s waiver. In
    
    seeking a COA from this court, Hill focuses solely on his first ground and does not
    
    raise here the second and third grounds he made in district court.
    
       In district court, Hill alleged that during plea negotiations his counsel, Scharg,
    
    ineffectively assisted him by guaranteeing him a sentence between 57 and 71
    
    months, all while knowing Hill’s sentence would be higher because of “fabricated
    
    evidence” Scharg had earlier supplied the government. Hill claimed that this
    
    evidence led to his receiving an obstruction-of-justice enhancement under U.S.S.G.
    
    § 3C1.1, which in turn defeated his reduction for acceptance of responsibility under
    
    § 3E1.1. Had he known of his counsel’s misdeeds, Hill says, he never would have
    
    pleaded guilty or waived his right to pursue relief under 28 U.S.C. § 2255.
    
       In addressing Hill’s claim, the court began by reciting the familiar two-pronged
    
    test for ineffective-assistance-of-counsel claims set out in Strickland v. Washington,
    
    
    466 U.S. 668
    , 687 (1984). Specifically, the court noted that Hill needed to establish
    
    “both that his attorney’s representation was deficient and that he was prejudiced by
    
    that deficiency.” R. vol. I at 246 (quoting James v. Gibson, 
    211 F.3d 543
    , 555 (10th
    
    Cir. 2000)). The district court further noted that “[t]here is a strong presumption that
    
    counsel provided effective assistance, and a section 2255 defendant has the burden
    
    of proof to overcome that presumption.” Id. at 246–47 (quoting United States v.
    
    Kennedy, 
    225 F.3d 1187
    , 1197 (10th Cir. 2000)).
    
    
    
                                              20
       Next, the district court examined Hill’s contentions. It noted that Hill claimed
    
    that his counsel had written on the bottom of his guilty-plea petition a guaranteed
    
    offense level of 25, together with a guideline range of 57 to 71 months. The court
    
    acknowledged that these numbers are in fact written on the bottom of the first page
    
    of that petition. The court recounted that “Hill insists that he ‘would not have
    
    entered into the waiver’ if he had known his counsel’s alleged representations were
    
    false.” R. vol. I at 247 (quoting R. vol. I at 147).
    
       But the district court still rejected this claim on the merits, emphasizing Hill’s
    
    statements at the change-of-plea hearing. Among other things, Hill verified there
    
    that he had received a copy of his indictment; had discussed the charges with his
    
    attorney; had read and discussed the plea agreement with his attorney; and
    
    understood the terms of the plea agreement, including its appellate-waiver
    
    provisions, which prevented collateral attacks on his conviction under 28 U.S.C.
    
    § 2255 except for ineffective-assistance-of-counsel claims challenging the validity
    
    of his plea or waiver. The court again also relied upon Hill’s specifically signed
    
    waiver of any collateral attacks under § 2255 under the plea agreement.
    
                                         DISCUSSION
    
       Before Hill can appeal the district court’s decision, he must obtain from this
    
    court a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only if a petitioner
    
    makes a “substantial showing of the denial of a constitutional right.” Id.
    
    § 2253(c)(2). This standard requires a “showing that reasonable jurists could debate
    
    whether (or, for that matter, agree that) the petition should have been resolved in a
    
                                                21
    different manner or that the issues presented were adequate to deserve
    
    encouragement to proceed further.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000)
    
    (internal quotation marks omitted). Where a district court rejects the petitioner’s
    
    constitutional claims on the merits, the “petitioner must demonstrate that reasonable
    
    jurists would find the district court’s assessment of the [petitioner’s] constitutional
    
    claims debatable or wrong” to obtain a COA. Id. Here, we conclude that reasonable
    
    jurists would not debate whether the district court properly denied Hill’s ineffective-
    
    assistance-of-counsel argument.
    
       Hill argues throughout his COA motion that Mr. Scharg provided false
    
    information against Hill to the government and the court, causing the district court
    
    to increase Hill’s sentence for an obstruction-of-justice enhancement under U.S.S.G.
    
    § 3C1.1. As we understand it, Hill builds this claim upon two sources. First, as noted
    
    above, at the failed change-of-plea hearing on February 8, 2011, Mr. Scharg
    
    responded to the district court’s question about whether Hill’s unexpected decision
    
    not to proceed with his guilty plea resulted from fear about his having earlier
    
    cooperated with law enforcement. Mr. Scharg advised, “Your Honor, I think his
    
    position is he thinks that the government doesn’t have enough witnesses to proceed
    
    against him in trial at this point.” R. vol. III at 8. Second, Hill relies on a statement
    
    in the government’s objection to the original PSR. There, the government
    
    represented that among other evidence heard at Hill’s detention hearing immediately
    
    after the failed change-of-plea hearing, “[e]vidence was also presented that
    
    established the defendant stated on February 8, 2011, the day he was scheduled to
    
                                               22
    enter a plea of guilty, that he wanted a ‘trial’ because ‘there would not be any
    
    witnesses left to testify at trial.’” R. vol. II at 36. From this, it appears that the
    
    government in its objection exaggerated what Mr. Scharg had actually told the
    
    district court.
    
       Hill presents his argument as if Mr. Scharg’s statement was the sole basis on
    
    which the magistrate judge detained him, and on which the district court later
    
    imposed the obstruction-of-justice enhancement. Among other things, he ignores the
    
    preceding language in the government’s objection to the PSR:
    
       During that hearing [the February 8, 2011 detention hearing], the Government
       presented evidence relating to the January 5, 2011, murder of Corry Thomas, a
       Government witness in the investigation and prosecution of the defendant.
       During the detention hearing, evidence was presented that the defendant
       offered $5,000 for the murder of Corry Thomas. Evidence was also presented
       relating to the January 11, 2011 shooting and attempted assassination attempt
       of another Government witness, Joshua Wheeler. During that shooting, his
       father-in-law was shot multiple times, however, he survived. Further, there
       was evidence presented that because of these shooting incidents, the
       Government was forced to relocate several other Government witnesses and
       their families.
    
    R. vol. II at 35–36. This summary makes apparent that the government was fully
    
    aware of the scope of violence against witnesses in Hill’s case long before Scharg
    
    responded to the district court’s question about why Hill no longer wished to plead.
    
       In addition, the district court did not impose obstruction-of-justice levels based
    
    on any statement Scharg uttered. Instead, the district court looked elsewhere. At the
    
    sentencing hearing, the district court heard directly from Yusuf Rashid about Hill’s
    
    efforts to find someone to kill Mr. Thomas. The district court applied the
    
    obstruction-of-justice enhancement after finding Rashid sufficiently credible to
    
                                             23
    support a preponderance finding that Rashid’s account “ought to be believed.” Hill,
    
    No. 12-5192, R. vol. III at 76. Because the obstruction issue was a difficult one, the
    
    court “want[ed] to make it very clear as to the basis for the obstruction ruling. . . .”
    
    Id. Simply put, Hill received obstruction-of-justice levels based on his own conduct,
    
    not based on any of Scharg’s statements.
    
       In addition, Hill bases his Sixth Amendment ineffective-assistance-of-counsel
    
    argument upon the government’s and Scharg’s supposedly securing his guilty plea
    
    by deceiving him into believing that he was guaranteed a sentence between 57 and
    
    71 months of imprisonment. As support, he offers a meager hand-written notation at
    
    the bottom of the first page of his petition to plead guilty. Although that notation
    
    implicitly describes an offense level of 28 minus 3 levels for acceptance of
    
    responsibility, which if combined with an unstated criminal history category I,
    
    would yield an advisory sentencing range of 57 to 71 months, nothing shows any
    
    sort of guarantee. And rightly so. Indeed, at sentencing Hill conceded that his base
    
    offense level alone was 28 (instead of 26 as he first contended in objecting to the
    
    original PSR), argued for three additional levels (rather than four) for his role in the
    
    offense under § 3B1.1, and did not oppose the PSR’s assigned criminal history
    
    category of II.
    
       Nor was Hill free to harbor some supposedly secret deal between him, his
    
    counsel, and the government for a sentence far below the likely advisory range. As
    
    stated in the district court’s thorough review, Hill had both in writing and in person
    
    at his change-of-plea hearing repeatedly told the district court that he had been
    
                                               24
    promised nothing outside of the plea agreement and that he fully understood that he
    
    could be sentenced for up to 40 years of imprisonment. Hill repeatedly
    
    acknowledged accepting the plea agreement’s terms knowingly and voluntarily, and
    
    he cannot now casually brush aside his many representations to the district court.
    
    See Cockerham, 237 F.3d at 1188–89 (holding that defendant “entered the plea and
    
    made the waiver knowingly and voluntarily” in view of defendant’s statements in
    
    the plea agreement and during the plea colloquy about his understanding the plea
    
    agreement’s terms).
    
       Finally, in vague terms, Hill contends that his Sixth Amendment rights were
    
    violated because his retained counsel, Scharg, labored under a conflict of interest
    
    during his representation. As we understand it, Hill argues that by informing the
    
    district court why Hill no longer wished to plead guilty on February 8, 2011, Scharg
    
    succumbed to or manifested “divided loyalties” that prevented his providing Hill
    
    effective assistance of counsel. From our review of the record, we see that Mr.
    
    Scharg represented Hill’s interest at every step of the proceedings until leaving the
    
    case. Accordingly, we see no merit to Hill’s conflict-of-interest claim.
    
    
    
    
                                              25
                                  CONCLUSION
    
    We deny Hill’s request for a COA and dismiss this appeal.
    
    
    
                                          Entered for the Court
    
    
                                          Gregory A. Phillips
                                          Circuit Judge
    
    
    
    
                                        26