F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       November 23, 2005
                               TENTH CIRCUIT
                                                                          Clerk of Court


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                        No. 05-6067
v.
                                               (Western District of Oklahoma)
                                                 (D.C. No. CIV-04-895-C)
JAMES CRAIG JEFFERSON, also
known as Craig Jefferson,

       Defendant-Appellant.




                                     ORDER


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.


      Petitioner, James Craig Jefferson, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). Pursuant to the terms of a plea

agreement, Jefferson pleaded guilty to one count of distribution of cocaine base,

in violation of 21 U.S.C. § 841(a)(1). Jefferson was sentenced to two hundred

and thirty-five months’ incarceration and three years’ supervised release.
      Although Jefferson waived his right to appeal or collaterally challenge his

conviction and sentence as part of his plea agreement, he filed the instant § 2255

motion on July 19, 2004. 1 In the motion, Jefferson raised two issues: (1) his

attorney provided constitutionally ineffective assistance, and (2) his sentence was

improper under Blakely v. Washington, 

(2004). The district court

concluded that the waiver in Jefferson’s plea agreement was enforceable as to his

ineffective assistance claims. See United States v. Cockerham, 

,

(“[A] plea agreement waiver of postconviction rights does not waive the right to

bring a § 2255 petition based on ineffective assistance of counsel claims

challenging the validity of the plea or the waiver. Collateral attacks based on

ineffective assistance of counsel claims that are characterized as falling outside

that category are waivable.”). The court also concluded that Jefferson’s

Blakely/Booker claim was not raised on direct appeal and, therefore, could not be

raised for the first time in his § 2255 because Booker does not apply retroactively

to initial habeas petitions. United States v. Bellamy, 

, 1186-87

(10th Cir. 2005).

      In his application for a COA and appellate brief, Jefferson asserts the

district court erred when it dismissed his claim that counsel provided ineffective


      1
       Jefferson also filed a direct appeal. This court enforced the waiver and
dismissed the appeal. United States v. Jefferson, 63 Fed. App’x 439 (10th Cir.
2003).

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assistance during negotiation of the plea agreement. Jefferson argues that

counsel’s ineffective assistance rendered his plea unknowing and involuntary and,

consequently, the waiver is not enforceable. We agree with the district court,

however, that the waiver is enforceable because the record belies Jefferson’s

assertion that his counsel “duped” him into pleading guilty. Jefferson argues that

his attorney failed to inform him that his sentence could be based on a quantity of

cocaine in excess of the 1.1 grams charged in the count to which he pleaded

guilty. The plea agreement, however, specifically states that Jefferson faced a

maximum penalty of 240 months’ imprisonment and contains a provision which

reads, “The government takes the position that for purposes of sentencing

guidelines computation, the defendant is accountable for not less than 500 grams

and no more than 1500 grams of cocaine base (crack), including relevant conduct

(USSG § 2D1.1).” Jefferson not only signed the plea agreement, but he

represented that he had discussed its terms with his attorney and understood them.

In addition, during the plea colloquy the following exchange occurred between

Jefferson and the court:

      The Court: Further, while this plea is being entered pursuant to a
                 plea agreement, which I presume will agree–the
                 government will agree to dismiss certain counts against
                 you, those counts or any illegal conduct reasonably
                 related to this offense of conviction can still be used
                 against you to determine your sentence. Do you
                 understand that?


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      Jefferson:    Yes, I do.

(emphasis added). The record clearly establishes that Jefferson’s ineffective

assistance claim lacks merit and that his guilty plea was entered knowingly and

voluntarily. Accordingly, the waiver contained in the plea is valid and

enforceable. See 

.

      To be entitled to a COA, Jefferson must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he 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.” Miller-El v. Cockrell, 

, 336 (2003) (quotations

omitted). In evaluating whether Jefferson has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. 

Although Jefferson need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

a review of Jefferson’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court


                                          -4-
concludes that Jefferson is not entitled to a COA. The district court’s resolution

of Jefferson’s § 2255 motion is not reasonably subject to debate and the issues he

seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court denies Jefferson’s request for a COA and dismisses this

appeal. Jefferson’s motion to proceed in forma pauperis on appeal is granted.

                                       Entered for the Court
                                       CLERK, COURT OF APPEALS


                                       By
                                               Deputy Clerk




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