UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES L. GIBSON,

Defendant - Appellant.	No. 02-6108

(D.C. No. CR-99-177-A

& CIV-01-1431-A)

(W.D. Oklahoma)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, SEYMOUR and EBEL, Circuit Judges.

James L. Gibson challenges the district court's denial of his pro se motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. His case is now before this panel on his application for a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2), which provides that a COA will issue only if the applicant has made a substantial showing of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we are not persuaded Mr. Gibson has made such a showing, we deny his application for a COA.

Mr. Gibson entered a plea of guilty to aiding and abetting the unlawful possession of a firearm by a convicted felon. See 18 U.S.C. § 2(a), § 922(g)(1). His plea included a waiver of his rights to appeal or to collaterally challenge his plea, conviction or sentence.1 Mr. Gibson now contends that his guilty plea was not knowing, voluntary, or intelligent because he was misinformed about its sentencing consequences and because he received ineffective assistance of counsel during the plea process. He argues further that the waiver of appeal rights in the plea agreement is invalid due to the alleged involuntariness of his plea. The district court examined these claims and found them to be without merit.

As the district court correctly noted, in United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002), we explained the significance and effect of waiver provisions where ineffective assistance claims are involved. A waiver such as the one made by Mr. Gibson is generally enforceable. An exception exists where the defendant claims ineffective assistance of counsel in the negotiation of his plea agreement or with respect to the waiver itself. Id. at 1190-91. Mr. Gibson challenges the voluntariness and intelligence of his plea and waiver of rights with what he claims was deficient advice from his attorney concerning the potential sentence he might receive.

In assessing this claim, the district court catalogued the occasions on which Mr. Gibson was informed by the court and his attorney of the terms and potential ramifications of his plea, his waiver, and the potential sentencing consequences. It further noted Mr. Gibson's acknowledgment that he accepted the terms of the plea agreement and waiver and understood their impact. The court also listed the occasions on which Mr. Gibson's counsel demonstrated his competent representation of his client in the plea negotiation process. Having thoroughly reviewed the record, we agree with the district court's conclusion that there is no merit in Mr. Gibson's claim of ineffective assistance of counsel in the plea negotiation process.

Insofar as Mr. Gibson's claims on appeal constitute attacks on his sentence or on his representation in the sentencing process, we affirm the district court's holding that these attacks cannot survive the waiver in the plea agreement which was voluntarily and knowingly made. See Cockerham, 237 F.3d at 1186-87.

In short, because none of Mr. Gibson's challenges survive the waiver agreement in his plea, he cannot show that reasonable jurists could debate whether the petition should have been resolved differently or that the issues presented are adequate to deserve encouragement to proceed further. See Slack, 529 U.S. at 484. He has thus not made a substantial showing of the denial of a constitutional right to warrant an issuance of a COA. See 28 U.S.C. § 2253(c)(2).	Accordingly, we DENY the application for a COA and DISMISS the appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge