FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         May 18, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 10-8012
 STEVEN JAMES WAITE,                             (D.C. Nos. 2:06-CV-00278-WFD and
                                                       2:01-CR-00099-WFD-3)
           Defendant-Appellant.                               (D. Wyo.)



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.


       Steven James Waite, a federal prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to enable him to appeal the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct sentence. The district court granted Waite’s

motion to proceed in forma pauperis. For the following reasons, we DENY Waite’s

request for a COA and DISMISS this matter.

                                             I

       On September 16, 2002, the United States filed an eleven-count superseding

indictment which charged Waite, Jason Encinias and Xavier Arriola-Perez with, inter



       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
alia, conspiring with each other, and with other individuals, to possess methamphetamine

with intent to distribute. Subsequently, the government moved to sever Waite’s trial from

that of Encinias and Arriola-Perez. At a hearing on the government’s motion, the

following exchange occurred:

             The District Court: The motion relates that there are 11 counts
      charged in the indictment and [Waite] is only charged in Count One which
      involves the conspiracy; that his role in the conspiracy is minor when
      compared to that of the co-conspirators who are co-defendants in this
      proceeding; and that his continued participation in this trial would unduly
      prejudice his right to obtain a fair trial as there would be a great risk that his
      conduct would be wrapped up in the . . . allegedly broader conduct of the other
      co-defendants.

                                           ****

             In particular, [] Waite is concerned about alleged evidence, including
      a badly beaten individual that dies of his injuries, autopsy photos, pictures of
      individuals stuffed into a 55-gallon drum and other kinds of evidence.

              Did I represent the position of the United States accurately with regard
      to this motion[?]

             The Government: You did, Your Honor.

ROA, Vol. 1 at 20-21.

      Ultimately, the district court granted the government’s motion. Encinias and

Arriola-Perez were tried and were found guilty of various drug and firearms related

offenses charged in the superseding indictment. See United States v. Encinias, 123 F.

App’x 924 (10th Cir. 2005); United States v. Arriola-Perez, 137 F. App’x 119 (10th Cir.

2005). Waite, meanwhile, agreed to plead guilty to two counts of distributing

methamphetamine as alleged in a second superseding indictment.

                                              2
       Pursuant to Waite’s plea agreement, the government stipulated that no more than

“5 kilograms of methamphetamine should be attributed to [Waite’s] distribution for

sentencing purposes.” See United States v. Waite, 139 F. App’x 119, 120 (10th Cir.

2005) (quoting the plea agreement). Despite the government’s stipulation, the

presentence report (“PSR”) prepared by the probation office concluded that 9.072

kilograms (20 pounds) of methamphetamine were attributable to Waite. The PSR’s

conclusion was based upon the investigation of Drug Enforcement Administration Agent

Steve Woodson whose conclusion was, in turn, based upon the statements of Joseph Dax,

who at the trial of Encinias and Arriola-Perez (hereinafter “Encinias/Arriola-Perez trial”)

testified that he and Waite jointly obtained methamphetamine from Arriola-Perez which

they later distributed.

       Prior to sentencing, the government filed written objections to the PSR, stating, in

relevant part, as follows:

       The United States notes that the ascribing of the full 20 pounds of
       methamphetamine distributed by both Dax and Waite to [Waite] is not an
       unreasonable assignment of relevant conduct given the applicability of
       U.S.S.G. Section 1B1.3(a)(1)(B). Also, the plea agreement in this case left the
       determination of the Base Offense Level and other sentencing factors to the
       discretion of the trial court. (See, Plea Agreement, unnumbered paragraph 3,
       page 2.)[.] Nevertheless, in the plea agreement, the United States stipulated
       that it could only prove the amount directly distributed by the defendant was
       just under 5 kilograms of methamphetamine, and it abides by that stipulation.

ROA, Vol.1 at 53-54 (emphasis in original).

       At Waite’s sentencing, the district court explained that “the fact that the

government may have stipulated as to relevant conduct does not in any way prohibit this

                                              3
Court from exercising its responsibility in determining what the relevant conduct is.”

Waite, 139 F. App’x at 120 (quoting sentencing transcript). The district court then called

Agent Woodson who, over the objection of Waite’s counsel, testified that 9.072

kilograms of methamphetamine was attributable to Waite. Finding Woodson’s testimony

to be credible,1 the district court concluded that Waite’s United States Sentencing

Guidelines (“U.S.S.G.”) base-offense level was 36, which, in turn, led to a total offense

level of 33 after a 3-level reduction for acceptance of responsibility was applied. When

coupled with his criminal history category of III, Waite’s offense level of 33 led to an

advisory Guidelines range for imprisonment of 168 to 210 months. The district court

sentenced Waite to 168 months.

       After this court rejected Waite’s claims on direct appeal, see 

and the

Supreme Court denied certiorari, see Waite v. United States, 

(2005), Waite

filed a timely § 2255 motion in the district court on November 24, 2006, alleging nine

propositions of error. In claims one, four, five, six, seven, and nine, Waite alleged that he


       1
           More specifically, the district court stated as follows:

       The testimony of [Agent Woodson] in this proceeding corroborates what I
       already knew from the record in the previous trial. Mr. Dax and Mr. Waite
       were jointly fronted methamphetamine by Arriola-Perez. The evidence is
       uncontroverted on that point. Twenty pounds of methamphetamine, as both
       parties know, is probably a grotesquely understated amount, but it’s the only
       legitimate amount that I can attach any significance to for purposes of this
       sentencing.

Waite, 139 F. App’x at 120-21(quoting sentencing transcript) (brackets in original,
emphasis omitted).

                                                 4
was denied his Sixth Amendment right to effective assistance of counsel as recognized

and defined in Strickland v. Washington, 

(1984). In claims two and three,

Waite contended that his constitutional right to due process was violated by prosecutorial

misconduct. And finally, in claim eight, Waite argued that his constitutional rights were

violated at sentencing because the sentencing court treated the Guidelines as mandatory,

rather than discretionary. On December 31, 2009, the district court issued an order in

which it rejected each of Waite’s arguments and denied his § 2255 motion. Waite now

seeks to appeal the district court’s denial of the second and third claims raised in his §

2255 motion.

                                              II

       A COA is a jurisdictional prerequisite to an appeal from the denial of a § 2255

motion. See Miller-El v. Cockrell, 

, 336 (2003). A COA may be issued

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). In order to make such a substantial showing, an applicant

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.” Slack v.

McDaniel, 

, 484 (2000) (citation and internal quotation marks omitted).

       In the second and third claims raised in his § 2255 motion, Waite argued that his

due process rights were violated by prosecutorial misconduct. More specifically, Waite

alleged that the government knowingly presented Dax’s perjured testimony at the

                                              5
Encinias/Arriola-Perez trial and that the government breached the plea agreement it had

reached with Waite by reneging on promises which related to federal charges pending

against Waite’s wife and by failing to adequately object to the PSR and to Woodson’s

testimony at sentencing.

       In addressing these claims, the district court initially noted that “because [] Waite

did not raise [them] on direct appeal, ordinarily a procedural bar would [preclude them

from being raised in the habeas corpus context].” ROA, Vol. 1 at 159. The district

found, however, that by alleging the ineffective assistance of his appellate counsel, Waite

had potentially demonstrated sufficient cause and prejudice to overcome this procedural

bar. See United States v. Mora, 

, 1216 (10th Cir. 2002) (“When a

defendant fails to raise a claim on direct appeal, he is barred from pursuing that claim in a

later § 2255 proceeding, absent a showing of cause and actual prejudice, or a fundamental

miscarriage of justice.”). The district court then proceeded to address Waite’s claims,

implicitly concluding that he was not prejudiced by his failure to raise either claim on

direct appeal because (1) “at [the] sentencing hearing, defense counsel raised the issue of

the inconsistencies in Dax’s testimony . . . . [but] the evidence against [] Waite

outweighed the discrepancies,” see ROA, Vol. 1 at 160-61, and (2) there is no evidence

that the government actually breached the plea agreement.

       After a careful review of the record, we conclude that reasonable jurists would not

debate the district court’s conclusions and thus, we decline Waite’s request for a COA on

these claims. In so holding, we are mindful that with respect to Waite’s breach of plea

                                              6
agreement argument, United States v. Boatner, 

, 1576-80 (11th Cir. 1992),

presents a seemingly factually similar case. There, the Eleventh Circuit held that the

government breached its plea agreement promise to stipulate to a certain drug quantity

when, at sentencing, “it attempted to bolster the presentence investigation report” by

“declaring to the court that its later investigations had revealed that the amount of

[contraband] involved was actually [greater than what was stipulated to.]” 

This declaration corroborated the testimony of the probation officer who, when called to

testify by the court, attributed the greater amount of contraband to the defendant based

upon his interviews with law enforcement officials. See 

       In the instant case, however, the prosecutor did nothing to “bolster” the PSR or

Woodson’s testimony at sentencing. Indeed, rather than “support[] the information

contained in the presentence report,” see 

the government offered no opinion

as to the efficacy of Woodson’s conclusion other than its pre-sentencing acknowledgment

that attributing 9.072 kilograms to Waite was “not unreasonable.” Boatner is, therefore,

readily distinguishable. See United States v. Stringfellow, 

at *5 (10th

Cir. June 5, 1996) (unpublished) (“[T]he government’s actions in Boatner are

distinguishable from the circumstances of this case. Here, the government did not

attempt to introduce belatedly discovered information about the defendant. This is not a

case where the government discovered facts indicating its prosecutorial discretion was not

properly exercised and attempted to recover by reneging on its promise.”). No jurist of

reason would debate the district court’s determination that Waite was not prejudiced by

                                              7
his failure to raise a breach of plea argument on direct appeal.

                                             III

       We DENY Waite’s request for a COA and DISMISS this matter.


                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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