Jones v. U.S.
Decision Date | 09 November 1998 |
Docket Number | No. 97-2816,97-2816 |
Citation | 167 F.3d 1142 |
Parties | Shawn JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Barbara E. Pitts (submitted), Loyola University of Chicago, Chicago, IL, for Plaintiff-Appellant.
Frances C. Hulin (submitted), Office of the United States Attorney, Springfield, IL, for Respondent-Appellee.
Before POSNER, Chief Judge, CUDAHY and COFFEY, Circuit Judges.
On March 3, 1995, a jury convicted Shawn Jones of conspiring to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 and possessing cocaine and marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After trial and prior to sentencing, Jones entered into a cooperation agreement with the government, which contained a waiver of his rights to appeal and to file a habeas motion under 18 U.S.C. § 2255. 1 The district court subsequently sentenced Jones to 144 months imprisonment, five years of supervised release and a mandatory special assessment of $100. Notwithstanding the waiver, Jones filed an appeal which was dismissed for failure to pay the required docketing fee. He then moved under § 2255 to vacate, set aside or correct his sentence. The issue here is whether a cooperation agreement that waives the right to file a petition under § 2255 bars a defendant from arguing that he received ineffective assistance of counsel when negotiating the agreement or that the agreement was involuntary. Finding that Jones had knowingly and voluntarily waived his right to file a habeas petition, the district court denied the motion. We part company with the district court and hold that a waiver is ineffective in the particular circumstances of this case. But because Jones has failed to indicate any substantive basis for his claims of ineffective assistance of counsel and involuntariness, we affirm the district court's denial of his motion to vacate, set aside or correct his sentence.
The enforceability of a plea agreement--or in this case a cooperation agreement--that waives the right to file a petition under § 2255 is an issue of first impression in this Circuit. The issue is a pure question of law which we review de novo. See Gray-Bey v. United States, 156 F.3d 733, 737 (7th Cir.1998); United States v. Jones, 152 F.3d 680, 685 (7th Cir.1998).
We have routinely held that a defendant may waive the right to a direct appeal as part of a written plea agreement. See United States v. Woolley, 123 F.3d 627, 631-32 (7th Cir.1997) () (quoting United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.), cert. denied, 520 U.S. 1281, 117 S.Ct. 2467, 138 L.Ed.2d 223 (1997)); United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995) () . The validity of an appeal waiver rests on whether it is "express and unambiguous" and whether the record clearly demonstrates that it was made "knowingly and voluntarily." Woolley, 123 F.3d at 632 (internal quotations and citations omitted). Before accepting a plea agreement, F ED.R.CRIM.P. 11 requires the trial court to discuss with the defendant "a host of issues, including the waiver of certain constitutional rights." United States v. Agee, 83 F.3d 882, 884 n. 1 (7th Cir.1996). However, the court is not required to conduct a specific dialogue with the defendant concerning the appeal waiver, so long as the record contains sufficient evidence to determine whether the defendant's acceptance of the waiver was knowing and voluntary. See Woolley, 123 F.3d at 632.
A waiver of the right to appeal does not completely foreclose review. We have recognized that the right to appeal survives where the agreement is involuntary, or the trial court relied on a constitutionally impermissible factor (such as race), or (as the waiver here specifically provides) the sentence exceeded the statutory maximum. See United States v. Hicks, 129 F.3d 376, 377 (7th Cir.1997); Feichtinger, 105 F.3d at 1190. In a similar vein, the Fourth and Fifth Circuits have held that a plea agreement waiver cannot bar an appeal based on the Sixth Amendment right to effective counsel. See United States v. Attar, 38 F.3d 727, 732 (4th Cir.1994) (); United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) ().
Although we have not had occasion to consider whether a waiver of the right to bring a collateral attack pursuant to § 2255 bars a challenge based on ineffective assistance of counsel or involuntariness, 2 the Fifth and Ninth Circuits have addressed the issue, albeit indirectly. In United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994), the Fifth Circuit took the position that there is no principled means of distinguishing a § 2255 waiver from a waiver of appeal rights. In upholding the § 2255 waiver, the court observed "[s]uch a waiver may not always apply to a collateral attack based upon ineffective assistance of counsel." Id. Similarly, in upholding a § 2255 waiver, the Ninth Circuit declined to hold that, even if otherwise valid, such a waiver "categorically" forecloses a challenge "such as a claim of ineffective assistance of counsel or involuntariness of waiver." United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). See also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) ( ). Lower courts have held to the same effect. See Pratt v. United States, 22 F.Supp.2d 868, 870 (C.D.Ill.1998) ( ); United States v. Raynor, 989 F.Supp. 43 (D.D.C.1997) ( ).
We endorse these sentiments. Our reasons for upholding the voluntariness requirement in the context of waivers of direct appeal rights apply with equal force to the right to bring a collateral attack pursuant to § 2255. Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself--the very product of the alleged ineffectiveness. To hold otherwise would deprive a defendant of an opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation. Similarly, where a waiver is not the product of the defendant's free will--for example, where it has been procured by government coercion or intimidation--the defendant cannot be said to have knowingly and voluntarily relinquished his rights. It is intuitive that in these circumstances the waiver is ineffective against a challenge based on involuntariness. Mindful of the limited reach of this holding, we reiterate that waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver.
The government concedes that the authorities point in this direction and does not seek to hold Jones to the terms of his waiver. See Respondent's Br. at 14 (). Thus, we cannot approve the district court's determination that the waiver was effective and we hold that Jones was entitled to file a petition under § 2255 challenging the cooperation agreement on the grounds of involuntariness and ineffective assistance of counsel.
Ordinarily we would remand to the district court for a determination whether Jones was in fact denied effective assistance of counsel or whether the agreement was involuntary. However, the government argues that since Jones has never identified the substance of his claims, there is...
To continue reading
Request your trial-
Shannon v. United States
...ineffective assistance of counsel. See, e.g., Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013) (citing Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999)). Accordingly, the Court does not find that these grounds support Shannon's claim of ineffective assistance of coun......
-
Cross v. United States
...sentencing court’s use of a constitutionally impermissible, identity-based factor such as race or gender. E.g. , Jones v. United States , 167 F.3d 1142, 1144 (7th Cir. 1999). According to the government, the written carve-out in Cross’s agreement merely replicates this constitutional baseli......
-
Rosa v. U.S.
...cannot fairly be used to bar a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 114 (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999)). Similarly, a section 2255 waiver is unenforceable where the asserted ground for challenging the sentence is ineffective......
-
United States v. Brown
...on a constitutionally impermissible factor (such as race), or ... the sentence exceeded the statutory maximum." Jones v. United States , 167 F.3d 1142, 1144 (7th Cir. 1999). Neither exception applies here. Jones's sentence of 450 months was within the statutory maximum (life imprisonment) a......
-
Plea bargaining
...State , 111 Nev. 335, 890 P.2d 797, 798 (1995) (upholding waiver of appeal but not waiver of collateral review); Jones v. United States , 167 F.3d 1142, 1145 (7th Cir. 1999) (the right to mount a collateral attack survives only with respect to discrete claims that relate directly to the neg......