D.C. Nos. 5:13-CV-00661-M, 5:11-CR-00320-M-1 W.D. Okla.
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Paul J. Kelly, Jr. Circuit Judge.
Defendant–Appellant Nolan Mac Newkirk seeks a certificate of appealability ("COA") to appeal the district court's dismissal of his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. United States v. Newkirk, Nos. CR-11-320-M, CIV-13-661-M, 2013 WL 4501339 (W.D. Okla. Aug. 21, 2013). We deny his request and dismiss his appeal.
On October 4, 2011, Mr. Newkirk was charged in a seven-count indictment with attempted transfer of obscene material to a minor (18 U.S.C. § 1470), distribution of child pornography (18 U.S.C. § 2252(a)(2)), and possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)). 1 R. 7-9. On December 19, 2011, Mr. Newkirk pleaded guilty to Counts 1 and 7—attempted transfer and possession—and, pursuant to a negotiated plea agreement, the government dismissed Counts 2 through 6—the distribution counts. Id. at 226-27. On June 21, 2012, the district court sentenced Mr. Newkirk to a bottom-of-the-guidelines sentence of 120 months' imprisonment for Count 1 and 15 months' imprisonment for Count 7, to be served consecutively for a total of 135 months. 2013 WL 4501339, at *1. The district court entered judgment on June 25, 2012. 1 R. 187. Mr. Newkirk did not appeal his sentence or conviction. 2013 WL 4501339, at *1.
On June 25, 2013, Mr. Newkirk filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. 1 R. 193. His motion alleged that, at sentencing, the district court committed several errors and his retained counsel was ineffective. Id. at 196-99. Mr. Newkirk's § 2255 motion faced one significant hurdle: his plea agreement expressly waived his right to "collaterally challenge his guilty plea, sentence and restitution imposed, and any other aspect of his conviction." Id. at 33. The waiver excepted only the right to "appeal a sentence above the advisory sentencing guideline range." Id. at 34. Because the district court sentenced Mr. Newkirk at the bottom of the guidelines range, that exception was not triggered. See 2013 WL 4501339, at *4. The district court held that Mr. Newkirk's waiver was enforceable and that his collateral challenge must therefore be dismissed. Id. at *4. Mr. Newkirk seeks to appeal that determination.
In order for this court to grant a COA, Mr. Newkirk must make a "substantial showing of the denial of a constitutional right, " 28 U.S.C. § 2253(c)(2), such 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) (internal quotation marks omitted). Mr. Newkirk must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.
A waiver of collateral-challenge rights under § 2255 is "generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Mr. Newkirk argues that the collateral-challenge waiver was not knowingly made because he did not understand the "extent of rights waived." Aplt. Br. 2. We are not persuaded that reasonable jurists would debate whether Mr. Newkirk knowingly waived his right to collaterally challenge his sentence.
First, Mr. Newkirk's assertion that he did not understand his waiver to be "broad" is belied by the record. Aplt. Br. 2. Before accepting Mr. Newkirk's plea, the district court engaged in the following colloquy:
THE COURT: Let me ask you to tell me in your own words what—I'm sure [your counsel] has gone over this with you, [the prosecutor] just mentioned it—one of the terms concerning your waiver of your right to appeal or to collaterally challenge the sentence of the Court, except under limited circumstances. Can you tell me what you agreed to in that regard?
THE DEFENDANT: In rough terms, I understand that if my sentence is above what the Sentencing Guidelines are, then I may appeal my ...