United States v. Crane ( 2005 )


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  •                                                                             F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    December 13, 2005
    TENTH CIRCUIT
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                              No. 05-6123
    v.                                                (D.C. Nos. 04-CV-896-C;
    01-CR-110-C)
    DYKE CRANE, JR.,                                         (W.D. Okla.)
    Defendant - Appellant.
    ORDER
    Before EBEL, HENRY and McKAY, Circuit Judges.
    Defendant-Appellant Dyke Crane, Jr. asks this court to grant (1) his motion
    for a certificate of appealability to challenge the district court’s dismissal of his
    habeas corpus petition and (2) his motion to proceed in forma pauperis. For the
    reasons set forth below, we DENY both motions and DISMISS the appeal.
    BACKGROUND
    Crane pleaded guilty to distribution of cocaine and, in January 2002, was
    sentenced to 140 months imprisonment. He appealed his conviction to this court,
    arguing that his counsel provided ineffective assistance during sentencing. See
    United States v. Jefferson, 63 F. App’x 439, 441 (10th Cir. 2003) (unpublished).
    We dismissed that appeal for lack of jurisdiction because Crane had waived his
    appellate rights in his plea agreement. See id.
    Crane then filed a motion to vacate, set aside, or correct his sentence
    pursuant to 
    28 U.S.C. § 2255
     based on the same ineffective assistance argument.
    The district court denied the motion, again on the grounds that Crane’s plea
    agreement waived his right to appeal or collaterally challenge his sentence. The
    district court then denied Crane’s request for a certificate of appealability
    (“COA”) and his motion for leave to proceed in forma pauperis pursuant to 
    28 U.S.C. § 1915
    . Before us are Crane’s renewed motions for a COA and to proceed
    in forma pauperis.
    DISCUSSION
    Where, as here, “the district court denies a habeas petition on procedural
    grounds . . . , a COA should issue when the prisoner shows, at least, that jurists of
    reason would find it debatable whether the petition states a valid claim of the
    denial of a constitutional right and that jurists of reason would find it debatable
    whether the district court was correct in its procedural ruling.” Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000) (emphasis added). The district court
    provided a well-reasoned ruling that Crane had waived, by plea agreement, his
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    right to appeal or collaterally challenge his sentence. As this procedural ruling
    was correct, we must deny Crane’s motion for a COA. 1
    We have held that a defendant’s waiver of his appellate rights is binding so
    long as (1) the scope of the waiver covers the present appeal, (2) the waiver was
    knowing and voluntary, and (3) enforcement of the waiver would not result in a
    miscarriage of justice. United States v. Hahn, 
    359 F.3d 1315
    , 1325 (10th Cir.
    2004) (en banc). The scope of Crane’s waiver was broad, allowing for appellate
    or collateral review only “in the event of an upward departure from the applicable
    guideline range, or a challenge based on subsequent changes in the law reflected
    in Tenth Circuit or Supreme Court cases deemed to have retroactive effect.”
    Jefferson, 63 F. App’x at 441 (quotations omitted). We do not find either of these
    conditions present. 2 Nor does Crane offer any argument that the challenges raised
    in his § 2255 motion fall outside the scope of his waiver.
    1
    We do not reach Crane’s argument that the district court erred in denying
    his § 2255 motion by ruling, in the alternative, that a prior (dismissed) conviction
    was properly used to calculate his criminal history.
    2
    The district court determined that the applicable guideline range was 210-
    262 months; Crane’s 140 month sentence was due to his “substantial assistance”
    to the government. Moreover, as the district court noted in denying Crane’s
    motion for a COA, Crane’s conviction was final before the Supreme Court issued
    its Booker decision. We have specifically held that Booker does not apply
    retroactively to cases on collateral review. See United States v. Price, 
    400 F.3d 844
    , 845 (10th Cir. 2005).
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    Additionally, Crane nowhere argues that his waiver was unknowing or
    involuntary. Indeed, in disposing of Crane’s initial appeal to this court, we
    specifically found that “the record reveals that Mr. Crane’s waiver was both
    knowing and voluntary.” Jefferson, 63 F. App’x at 444.
    Finally, though Crane based his § 2255 motion on ineffective assistance of
    counsel, we have held that only “ineffective assistance of counsel in connection
    with the negotiation of the waiver” results in a miscarriage of justice. Hahn, 
    359 F.3d at 1327
     (emphasis added). “Collateral attacks based on ineffective
    assistance of counsel claims that are characterized as falling outside that category
    are waivable.” United States v. Cockerham, 
    237 F.3d 1179
    , 1187 (10th Cir.
    2001). Crane makes no argument that his counsel’s alleged ineffective assistance
    affected the voluntariness of his plea, nor does the record support such an
    argument. In the face of a valid waiver of the right to collaterally challenge his
    sentence, the district court was undebatably correct in denying Crane’s § 2255
    motion. We therefore DENY his request for a COA. 3
    3
    We have held in the context of direct appellate review that we are
    precluded from dismissing an appeal on the grounds of a waiver of appellate
    rights unless the government affirmatively argues that the defendant has waived
    those rights in a plea agreement. See United States v. Calderon, 
    428 F.3d 928
    ,
    930-31 (10th Cir. 2005). We have explained that “the government might
    conclude that justice would be better served by allowing a criminal defendant to
    appeal a wrongful sentence, even when the plea agreement included an appeal
    waiver.” 
    Id. at 931
    .
    (continued...)
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    Crane also renews his motion to proceed in forma pauperis. We grant such
    a motion only where a defendant shows both “a financial inability to pay the
    required fees and the existence of a reasoned, nonfrivolous argument on the law
    and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole
    Comm’n, 
    115 F.3d 809
    , 812 (10th Cir. 1997) (emphasis added). Further, we find
    Crane’s appeal to be frivolous when he has previously been informed—including
    once by this court—that he waived his right to appeal or collaterally challenge his
    sentence. Thus his motion to proceed in forma pauperis must be DENIED. This
    appeal shall be considered a strike. We DISMISS the appeal.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
    3
    (...continued)
    Assuming the government must affirmatively choose to enforce a waiver of
    appellate rights on collateral as well as direct review, it is not clear from the
    record that the government raised waiver of appellate rights in response to
    Crane’s § 2255 motion. However, a COA will only issue “when the prisoner
    shows, at least, . . . that jurists of reason would find it debatable whether the
    district court was correct in its procedural ruling.” Slack, 
    529 U.S. at 484
    (emphasis added). Thus when, as here, the district court has denied a § 2255
    petition on the procedural ground of waiver of appellate rights and the defendant
    seeks a COA, he bears the burden to show that the ruling was incorrect because
    the government failed to raise the waiver argument in response to the petition.
    Crane makes no such claim here.
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