United States v. Moore, 10th Cir. (2002)
United States v. Moore, 10th Cir. (2002)
MAR 27 2002
PATRICK FISHER
Clerk
VICTOR MOORE,
Defendant - Appellant,
v.
UNITED STATES OF AMERICA,
Plaintiff - Appellee.
No. 01-5168
(D. C. Nos. 01-CV-163-H,
99-CR-23-H)
(N.D. Oklahoma)
questioned the defendant with respect to his decision to plead guilty under the
plea agreement. Indeed, the district court asked a series of in-depth questions
designed to determine whether defendant was fully informed with respect to the
provisions of the agreement. In addition to the plea agreement, defendant also
executed a separate document representing that he had reviewed all of the
provisions of the plea agreement. We find that the district court made a thorough
inquiry into whether the plea agreement was entered into knowingly and
voluntarily. Although it is true that the district court did not directly address the
appellate rights waiver provision in the plea agreement, this court has repeatedly
held that a courts failure to directly address the appellate waiver provision does
not negate that provision, so long as the record is clear that the waiver was
entered into knowingly and voluntarily. See United States v. Black, 201 F.3d
1296, 1301-02 (10th Cir. 2000).
Petitioner claims that his defense counsel was ineffective because he
negotiated a plea agreement with two different appellate waiver provisions. The
inclusion of two instead of one waiver provision does not negate the
enforceability of a plea agreement entered into knowingly and voluntarily.
Indeed, the inclusion of two provisions that are not inconsistent merely informs
the defendant one more time of the waiver provision. Thus, inclusion of two
waiver provisions is not unreasonable. Even construing the filings in the district
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court and in this court liberally as we must do in the case of a pro se petitioner,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we find no evidence in this record
that defense counsel rendered ineffective assistance in the negotiation and entry
of the plaintiffs guilty plea pursuant to the plea agreement.
To be entitled to a COA, Mr. Moore must make a substantial showing of a
denial of a constitutional right. 28 U.S.C. 2253(c)(2). He can make this
showing by establishing 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) (quotation omitted).
We may grant habeas relief only if the state court entered a judgment that
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. 2254(d).
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For substantially the reasons given by the district court, we find that Mr.
Moore has not met the statutory requirements. We therefore deny his application
for COA and dismiss the appeal.
ENTERED FOR THE COURT,
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