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United States v. Klingensmith

July 9, 2009


D.C. Nos. 2:08-CV-02363-JWL and 2:05-CR-20063-JWL-1 (D. Kansas).

The opinion of the court was delivered by: Robert H. Henry Chief Judge


Before HENRY, Chief Judge, PORFILIO and BRORBY, Circuit Judges.

Mark B. Klingensmith, appearing pro se, requests a certificate of appealability ("COA") to perfect his appeal from the district court's order that denied his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Reviewing Mr. Klingensmith's filings liberally, we conclude that Mr. Klingensmith has failed to make a substantial showing of the denial of a constitutional right. Accordingly, we DENY Mr. Klingensmith's request for a COA and DISMISS this matter.


In April 2007, Mr. Klingensmith pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii)(II) and 846 and 18 U.S.C. § 2. The plea contained a waiver of his right to appeal and collateral attack. At sentencing, Mr. Klingensmith received a $15,000 fine and a ninety-two month term of imprisonment. Subsequently, he moved the district court for § 2255 relief, alleging that:

[H]e received ineffective assistance of counsel in connection with the negotiation of the plea agreement and his decision to plead guilty because his counsel neglected to advise him that the indictment should have been dismissed for violation of the Speedy Trial Act; because his counsel assured him that he would receive "the minimum sentence" by entering a plea of guilty[;] . . . because his counsel failed to object to Mr. Klingensmith's classification in the Presentence Report as a career offender and failed to object to the court's imposition of a fine.

Rec. vol. I, at 155-56 (Dist. Ct. Order, filed Jan. 15, 2009). In addition, Mr. Klingensmith asserts that the $15,000 fine constitutes a violation of 18 U.S.C. § 3572, which requires sentencing courts to consider a defendant's income, earning capacity and financial resources when issuing a criminal fine.*fn1 The district court denied Mr. Klingensmith's motion on all grounds. Mr. Klingensmith now requests a COA from this court.

Prior to filing an appeal, "a prisoner who was denied [§ 2255] relief in the district court must first seek and obtain a COA . . . . This is a jurisdictional prerequisite . . . ." Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); see Fed. R. App. P. 22(b)(1). A COA may only be issued if Mr. Klingensmith makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make the requisite showing, Mr. Klingensmith 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." Miller-El, 537 U.S. at 336 (alteration and internal quotation marks omitted); United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). To determine whether Mr. Klingensmith has satisfied his burden, we undertake a "preliminary, though not definitive, consideration of the [legal] framework." Miller-El, 537 U.S. at 338. Mr. Klingensmith need not demonstrate his appeal will succeed to be entitled to a COA; however, he must "prove something more than the absence of frivolity or the existence of mere good faith." Id. (internal quotation marks omitted).

Mr. Klingensmith contends that reasonable jurists could debate the correctness of the district court's denial of his § 2255 motion; whether his pretrial delay violated STA ("Speedy Trial Act") and defense counsel was constitutionally ineffective for failing to raise the issue; and whether counsel rendered constitutionally ineffective assistance at sentencing. We need not resolve the merits of these contentions, however, because he waived his right to appeal and collateral attack. In United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam), we held a waiver of appeal is enforceable so long as (1) the disputed issue falls within the scope of the waiver of appellate rights; (2) the defendant knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver does not result in a miscarriage of justice. We conclude that Mr. Klingensmith's waiver satisfies all three conditions.

I. Mr. Klingensmith Waived His Right To Bring The Instant 28 U.S.C. § 2255 Action

Turning to the first prong, we conclude that this proceeding falls within the scope of Mr. Klingensmith's waiver. In his plea agreement, Mr. Klingensmith agreed to a broad waiver of his "right to appeal or collaterally attack any matter in connection with this prosecution, conviction, and sentence," including his right to § 2255 relief. Rec. vol. 1. at 157.

The breadth of the waiver is not only clear from its language but also from the colloquy before the district court. Before entering the plea, the district court asked Mr. Klingensmith if he understood the broad scope of the waiver; specifically, the district court clarified that Mr. Klingensmith had waived his right to ...

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