308 F.3d 192 (2nd Cir. 2002), 00-2544, Frederick v. Warden, Lewisburg Correctional Facility

Docket Nº:00-2544.
Citation:308 F.3d 192
Party Name:Junior FREDERICK, Petitioner-Appellant, v. WARDEN, LEWISBURG CORRECTIONAL FACILITY, Respondent-Appellee.
Case Date:October 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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308 F.3d 192 (2nd Cir. 2002)

Junior FREDERICK, Petitioner-Appellant,



No. 00-2544.

United States Court of Appeals, Second Circuit

October 18, 2002

Argued Oct. 22, 2001.

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Sally Wasserman, Law Office of Sally Wasserman, New York, New York, for Petitioner-Appellant.

Barbara D. Cottrell, Assistant United States Attorney, Northern District of New York (Joseph A. Pavone, United States Attorney; Miroslav Lovric, Assistant United States Attorney; Thomas P. Walsh, Assistant United States Attorney, of counsel), Albany, New York, for Respondent-Appellee.

Before CARDAMONE, WINTER, and SACK, Circuit Judges.

WINTER, Circuit Judge.

Junior Frederick appeals from Judge McAvoy's denial of his habeas corpus petition under 28 U.S.C. § 2255. The petition challenged his plea-based conviction on the ground of ineffective assistance of counsel with regard to a motion to withdraw the guilty plea, the sentencing, and the appeal. We reach the merits of appellant's petition notwithstanding appellant's general waiver of the right to collaterally attack his conviction. We do so because appellant's petition goes to the validity of the plea agreement itself and thus has not been waived. However, appellant's attack on the plea agreement, claiming ineffective assistance of trial and appellate counsel, fails on the merits. It was neither objectively unreasonable nor prejudicial for counsel not to challenge the district court's failure to elaborate upon the elements of the charged conspiracy where appellant received requisite notice through other means.


Appellant was arrested for attempting to sell narcotics to an undercover officer. On December 1, 1997, appellant entered into a plea agreement with the government pursuant to which he pleaded guilty to distribution of cocaine and conspiracy to possess with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846.

The plea agreement contained a clearly titled provision waiving appellate rights.1

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The agreement also contained a provision in which appellant agreed not to collaterally attack his sentence, conviction, plea, or other issue under 28 U.S.C. § 2255.2 Appellant's plea agreement contained two other relevant provisions: (i) explaining the nature of the charge and the factual basis for the plea, and (ii) describing the structure of the conspiracy, its aims, its participants, and appellant's role.

At the plea hearing, the court specifically inquired as to whether appellant had discussed the charges against him with his counsel. Appellant indicated under oath that his counsel had explained the charges and that he understood them and the consequences of his plea. The charges were read to appellant,3 although the district court did not further elaborate on the elements of conspiracy. The government described the evidence it could offer against appellant, and he admitted to the truth of the underlying facts. The district court accepted appellant's guilty plea, finding it to be knowing and voluntary.

Before sentencing, appellant retained new counsel and moved to withdraw his guilty plea, claiming that the plea was unknowing and involuntary. The district court held a hearing, after which it again found the plea to be voluntary and informed. Appellant was ultimately sentenced to 151 months of imprisonment, the

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low end of the applicable Sentencing Guidelines range.

Notwithstanding the plea agreement, appellant appealed his conviction, challenging the district court's refusal to grant his motion to withdraw the guilty plea and the sentence imposed. We held that appellant's first counsel at the plea proceeding was not constitutionally ineffective and that appellant had entered into the plea agreement knowingly and voluntarily. See United States v. Turner, No. 98-1213, 1999 U.S.App. LEXIS 4767, at *3 *4 (2d Cir. Mar. 19, 1999) (unpublished summary order). We also concluded that, under the plea agreement, appellant had waived his right to challenge his sentence as excessive. See id. at *4 (noting that appellant "explicitly waived his right to challenge his sentence as part of the plea agreement under which he entered his guilty plea").

A year later, appellant, represented by his third counsel, filed the present petition, claiming that appellant had received ineffective assistance from his second counsel with regard to the motion to withdraw the plea, the sentencing, and the direct appeal. For the first time, appellant claimed that the district court's failure to elaborate upon the elements of a conspiracy charge was a violation of Fed.R.Crim.P. 11(c), and that counsel's failure to attack this error constituted ineffective assistance in the district court and on appeal.

The district court interpreted paragraph 25 of appellant's plea agreement as containing "an explicit waiver of [appellant's] right to collaterally attack . . . the sentence imposed, judgment of conviction, guilty plea, or sentencing guidelines calculation." Frederick v. United States, No. 00-CV-354, at 6 n. 3 (N.D.N.Y. Aug. 1, 2000) ("Dist.Ct.Op."). Accordingly, the district court denied appellant's petition. The district court also found that, even had it not been procedurally barred by the waiver contained in the plea agreement, appellant's petition would fail on the merits. Id. at 6.

We granted appellant's pro se motion for a certificate of appealability ("COA") limited to the following issues: (i) whether the plea agreement waived appellant's right to file a collateral attack on his conviction and sentence; (ii) whether the district court's alleged violation of Rule 11(c) by failing to inform appellant of the elements of conspiracy may be collaterally attacked; (iii) whether appellant was denied effective assistance of counsel, in light of counsel's failure to challenge his guilty plea as not knowing and voluntary based on the claimed Rule 11 violation; and (iv) whether issues (ii) and (iii) were waived because they were first raised in appellant's motion for a COA in this court. This appeal, in which appellant is represented by his fourth counsel, followed.


We review a district court's denial of a 28 U.S.C. § 2255 petition de novo. Santana-Madera v. United States, 260 F.3d 133, 138 (2d Cir. 2001), cert, denied, ¾ U.S. ¾ , 122 S.Ct. 817, 151 L.Ed.2d 701 (2002).

a) Waiver of the Right to File a Collateral Attack

The first certified question is whether "the plea agreement waived appellant's right to file a collateral attack on his conviction and sentence." There is no general bar to a waiver of collateral attack rights in a plea agreement. See Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001) (per curiam). However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement. See United States v. Hernandez,

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242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam) (declining to enforce waiver of appellate rights where defendant sought to challenge on appeal the constitutionality of the process by which appeal rights were waived); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (holding that waiver of right to file a Section 2255 motion is unenforceable where defendant claims ineffective assistance of counsel with respect to the agreement which effected the waiver).

The district court relied upon our order on the direct appeal stating that the plea agreement was "knowing and voluntary" as giving effect to the waivers contained in the plea agreement and thus barring appellant's present petition. See Dist. Ct. Op. at 6 (citing Turner, 1999 U.S.App. LEXIS 4767, at *3). However, to the extent the present petition contests the constitutionality of the process by which appellant's claim of a defective plea agreement was twice denied, the waiver does not apply. Appellant is not, therefore, barred under the terms of the plea agreement from bringing the present petition to the extent it claims a violation of Rule 11 or the ineffectiveness of trial and appellate counsel in failing to raise such a claim.4

b) Alleged Ride 11 (c) Violation

If, as we conclude, there was no Rule 11 violation, issues (ii)5 and (iii) do not offer grounds for relief. Accordingly, issue (iv) need not be reached, although we do note that the COA appears to be in...

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