(D. of Kan.) (D.C. Nos. 2:12-CV-02551-KHV and 2:10-CR-20076-KHV-12)
Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges. [**]
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
Timothy M. Tymkovich, Circuit Judge
Antonio Clark appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He argues that the district court erred in rejecting his ineffective assistance of counsel claims and in relying on an incomplete transcript of his change of plea hearing. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we deny a certificate of appealability (COA) and dismiss the appeal.
Clark was indicted on one count of conspiracy to distribute crack cocaine. The government subsequently filed a motion providing notice that it would seek an enhanced sentence based on a prior drug conviction. The enhancement subjected Clark to a statutory mandatory minimum of 20 years' imprisonment.
Clark signed a written plea agreement in which he agreed to plead guilty in return for the government's promise to (1) recommend a sentence at the low end of the applicable guideline range, (2) recommend a reduction in offense level for acceptance of responsibility, and (3) refrain from filing a second motion seeking a double enhancement of his sentence based on a second prior drug conviction. A double enhancement would have meant a statutory mandatory minimum of life in prison. The plea agreement waived Clark's right to appeal or collaterally attack his sentence absent ineffective assistance of counsel, an upward departure from the applicable guideline range, or an appeal first filed by the government. At the change of plea hearing, the court conducted the Rule 11 colloquy and Clark entered his plea of guilty.
Clark's total offense level and criminal history category resulted in a guideline range of 151 to 188 months' imprisonment. As promised, the government requested a low-end sentence, but the district court disagreed with the recommendation and sentenced Clark to 170 months, still well below the enhanced minimum's 20 years. No direct appeal was ever filed.
Dissatisfied with the sentence, Clark filed a collateral proceeding in district court alleging that his trial counsel was ineffective. He pointed to six instances of ineffective assistance: Counsel (1) failed to conduct a pretrial investigation; (2)coerced Clark into entering a plea agreement that did not benefit him; (3)miscalculated the likely sentence Clark would receive; (4) negotiated the plea despite having a conflict of interest; (5) failed to move for a downward departure or to challenge the base offense level and the amount of drugs attributed to Clark; and (6) failed to file a notice of appeal after being instructed to do so.
The district court found that, with the exception of Clark's appeal claim, the record conclusively established he was not entitled to relief. After appointing Clark new counsel and holding an evidentiary hearing on the remaining issue, the court entered an order rejecting the appeal claim and denying a COA on all of the claims.
A COA is a jurisdictional prerequisite to our review of a § 2255 motion. Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). "We will issue a COA only if the applicant has made a substantial showing of the denial of a constitutional right." Id. (internal quotation marks omitted). To make the requisite showing, the 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." Id. (quoting Slack v. McDaniel, 529 U.S. 473, 494 (2000)). In assessing the applicant's claims, "we review the district court's legal conclusions de novo and its factual findings under the clearly erroneous standard." English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001) (alteration omitted).
A. Transcript of the Change of Plea Hearing
Clark first alleges that the district court's reliance on the transcript of the change of plea hearing denied him his due process right to appeal. He claims the transcript is materially incomplete and that, without a full transcript of the proceedings below, he cannot properly pursue his appeal. He assigns two errors flowing from the incomplete transcript: (1) any instance in which the district court made a finding of fact based on the change of plea proceeding is clearly erroneous; and (2) the ...