United States v. Mansker ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-5106
v. (D.C. No. 97-CV-42-B)
(N.D. Okla.)
ALVIN MANSKER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges.
Petitioner Alvin Mansker requests a certificate of appealability in order to
appeal the district court's dismissal of his motion to vacate, set aside, or correct
an illegal sentence pursuant to 28 U.S.C. § 2255. We deny the certificate and
dismiss the appeal.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
In 1992 Mr. Mansker pleaded guilty to a charge of conspiracy to distribute
50 grams or more of crack cocaine pursuant to a plea agreement. In return for Mr.
Mansker’s guilty plea as well as his cooperation and truthful testimony, the
Government promised not to charge him for other acts connected to the
conspiracy, and to grant him immunity for the use and disclosures of his
testimony. In that agreement the Government also promised that if Mr. Mansker
made a good-faith effort to provide the Government with “substantial assistance”
the Government would file a motion with the court, either before or after
sentencing, for the purpose of allowing the court to depart downward from the
mandatory minimum of ten years imprisonment prescribed in the Sentencing
Guidelines.
Mr. Mansker cooperated with the Government at first, until he learned that
a co-defendant who had cooperated with the Government had been murdered
shortly after sentencing. From that point on, Mr. Mansker refused to cooperate as
per the plea agreement. As a result, the Government refused to file the
“substantial assistance” motion with the court. Mr. Mansker requested that the
district court allow him to withdraw his guilty plea. The district court refused.
The court sentenced him to the mandatory minimum sentence of ten years
imprisonment.
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On direct appeal before this court Mr. Mansker claimed (1) that the district
court abused its discretion by refusing to allow him to withdraw his guilty plea,
and (2) that the government breached the plea agreement by refusing to file a
motion recommending a downward departure in his sentence for substantial
assistance. We denied both of Mr. Mansker’s claims. See United States v.
Mansker, No. 93-5022 (10th Cir. Aug. 16, 1993) (unpublished).
On January 15, 1997, Mr. Mansker filed a 28 U.S.C. § 2255 attack on his
sentence. In that motion, Mansker (1) again claimed that the Government
breached the plea agreement; (2) raised for the first time the claim that his
sentence was a violation of 18 U.S.C. § 3553(a)(6) in that it created unwarranted
sentence disparities among defendants with similar records found guilty of similar
conduct; and (3) raised for the first time a claim that his sentence should be
reduced under the “safety valve” provision of 18 U.S.C. § 3553(f). The district
court denied Mr. Mansker’s motion on the grounds that (1) the plea agreement
issue was addressed by this court’s decision in Mr. Mansker’s direct appeal, thus
barring relief via collateral attack; (2) Mr. Mansker’s 18 U.S.C. § 3553(a)(6)
disparate sentence claim failed on the merits; and (3) Mr. Mansker’s 18 U.S.C. §
3553(f) safety valve claim failed as he was sentenced before passage of this
provision.
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Because Mr. Mansker’s § 2255 motion was filed with the district court after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the provisions of that act requiring § 2255 appellants to obtain a
certificate of appealability apply in this case. See United States v. Kunzman, 125
F.3d 1363, 1365 n.2 (10th Cir. 1997). The certificate of appealability may only
be granted upon substantial showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2) (West Supp. 1997). We have held that the standard for
granting a certificate of appealability under the AEDPA is the same as the
standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880
(1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied
117 S. Ct. 746 (1997) and overruled on other grounds by Kunzman, 125 F.3d at
1365 n.2. Under the Barefoot standard, a certificate will issue only where the
petitioner has demonstrated the issues raised are debatable among jurists of
reason, a court could resolve the issues differently, or the questions presented are
deserving of further proceedings. See Barefoot, 463 U.S. at
893 n.4.
Mr. Mansker has failed to make such a showing. Accordingly, the
certificate of appealability is DENIED and the appeal is DISMISSED.
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The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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