U.S. v. Mabry

• Decision Date: 28 July 2008
• Docket Number: No. 06-2867.,06-2867.
• Citation: 536 F.3d 231
• Parties: UNITED STATES of America v. James MABRY a/k/a James Young a/k/a Manny. James Mabry, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

536 F.3d 231

UNITED STATES of America v. James MABRY a/k/a James Young a/k/a Manny.

James Mabry, Appellant.

No. 06-2867.

United States Court of Appeals, Third Circuit.

Argued March 27, 2008.

Filed July 28, 2008.

David R. Fine, Esq. Andrew L. Swope, Esq. [Argued], Kirkpatrick & Lockhart Preston Gates Ellis, Harrisburg, PA, for Appellant.

John J. McCann, Esq., Office of United States Attorney, Williamsport, PA, Theodore

B. Smith, III, Esq. [Argued], Office of United States Attorney, Harrisburg, PA, for Appellee.

Before: McKEE, RENDELL and TASHIMA,^* Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

James Mabry appeals from the District Court's denial of his habeas petition in which he claimed that his counsel was ineffective for failing to file an appeal. The District Court held that Mabry's claim was barred by the waiver in his plea agreement of his right to file a collateral attack. While the issue before us—which, we believe, involves the enforceability of the waiver—may seem straightforward, there is a body of caselaw in the courts of appeals—which, curiously, focuses not on the waiver but on the importance of the right to appeal—that complicates our analysis. Ultimately, we will affirm.

I. Facts and Procedural History

On March 25, 2004, a federal grand jury issued a four-count indictment against James Mabry. On November 18, 2004, a six-count superceding indictment was returned charging Mabry with possession with intent to distribute cocaine and crack, possession of a firearm during and in relation to a drug trafficking crime, and felon in possession of a firearm on several dates in March 2004. After a jury was selected for trial on May 3, 2005, Mabry entered into a written plea agreement pursuant to which he pleaded guilty to one count of the indictment, possession with intent to distribute more than five grams of cocaine base, in return for the government's dismissal of the remaining charges.

The plea agreement specifically provided that Mabry waived any right "to appeal any conviction and sentence, including a sentence imposed within the mandatory minimum, on any and all grounds set forth in title 18 United States Code, Section 3742 or any other grounds, constitutional or nonconstitutional." Plea Agreement ¶ 35. He also waived his "right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255." Id. Mabry signed underneath an acknowledgment, which stated "I have read this agreement and carefully reviewed every part of it with my attorney. I fully understand it and I voluntarily agree to it." (J.A. 66).

In the course of a thorough change-of-plea colloquy, government counsel read relevant parts of the plea agreement, including the entire waiver provision, to the defendant. The Court then asked Mabry if he understood the plea agreement and received an affirmative answer. It confirmed that no promises or threats had been made to induce him to plead and that he had not been threatened with additional charges or other government action if he failed to plead. It verified that Mabry had discussed the terms of the Sentencing Guidelines with defense counsel and understood that the Court was not bound by the calculation of the Guidelines.

The Court discussed the waiver of direct appeal and collateral challenge rights at some length. It first referred Mabry to the appellate waiver in the plea agreement and asked whether he understood the meaning and effect of the waiver. It explained that "unless there is an error that results in a miscarriage of justice, you will have no right to challenge or appeal an incorrect or allegedly incorrect determination of the advisory sentencing guidelines imprisonment range made by this Court" and inquired as to whether the defendant understood. (J.A. 198). The defendant answered both questions affirmatively.

The Court then turned to the waiver of the right to collaterally attack the sentence. Directing the defendant to that section of the plea agreement, the Court asked:

Do you understand that although you will be sentenced after a very careful consideration of the advisory sentencing guidelines, unless there is an error which results in a miscarriage of justice, you will have no right to challenge in any appeal or collateral proceeding an incorrect or allegedly incorrect determination of the advisory sentencing guidelines? Do you understand that?

(J.A. 198). Once again, the defendant responded affirmatively. The prosecutor was asked to advise Mabry of the meaning of a collateral proceeding.

Defense counsel then explained the meaning of the appellate and collateral waivers in more depth:

What the waiver of appeal, as his Honor just covered, is once the sentence is imposed you have given up your right to challenge the calculation which is advisory only of the sentencing guidelines. In addition to direct appeal rights, based on the frankly long standing rights going back to the Magna Carta, there's a right to what is called habeas corpus. Habeas corpus in the federal system has been codified to what is known as 2255. Essentially you are probably familiar with 2255. It is a right after direct appeal for you, for instance, to raise issues that may have to do with my ineffectiveness or other collateral issues that could not have been raised on direct appeal.

By collateral, meaning those issues that would probably arise out of my effectiveness to represent you. So that this aspect of waiver of appeal is intended to cover not only your direct appeal rights, but once direct appeal is exhausted bringing a federal habeas corpus or a 2255 to raise other issues.

Simply stated, you've agreed in this plea agreement that ultimately you will not raise any appeal issues concerning the advisory nature of the sentencing guideline calculation. Do you understand that?

(J.A. 199-200). Defense counsel thus specifically explained that Mabry's waiver included the right to assert that counsel was ineffective. In response to the Court's inquiry as to whether there was any doubt in counsel's mind that Mabry understood the plea, he agreed that Mabry fully understood the meaning and effect of the waiver. The Court then found that Mabry was acting voluntarily and fully understood the consequences of the waiver and accepted the plea. On March 9, 2006, Mabry was sentenced to 210 months' imprisonment followed by four years of supervised release.

On May 11, 2006, Mabry, proceeding pro se, filed a Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255, along with an affidavit and memorandum of law with attachments in support of his motion. In the motion, he complained of counsel's failure to file an appeal notwithstanding his request that counsel do so. His affidavit contained declarations related only to that issue. His memorandum in support of the motion outlined the four issues he would have raised on appeal. One sentence—"Counsel never presented any reasons to waive his client's right to appeal"—is the only reference to waiver in the filing. (J.A. 134). Mabry did not pursue or explain this statement further (indeed, it appears to refer to his argument that defense counsel never explained that any issues would be frivolous). Instead, his pro se memorandum of law continued with a discussion of the four issues that Mabry believes his counsel should have appealed. All challenged the correctness of the calculation of his sentence under the Sentencing Guidelines.¹

On May 15, 2006, the District Court summarily denied the motion. It concluded that, because the four issues Mabry allegedly asked his counsel to raise were insubstantial and lacked merit, enforcement of the waiver of habeas did not work a miscarriage of justice, and Mabry's petition was therefore barred by the waiver. The Court opined:

Mabry waived his right to challenge his sentence in a collateral proceeding, including by way of a section 2255 motion and there were no errors committed by this court which rise to the level of a miscarriage of justice which would entitle Mabry to pursue an appeal or collateral relief. See United States v. Khattak, 273 F.3d 557 (3d Cir.2001) ("There may be an unusual circumstance where an error amounting to a miscarriage of justice may invalidate the waiver.") In the present case, we discern no errors whatsoever in the conviction or sentence imposed.

(J.A. 21). Although the Court referred to the waiver, it did not discuss the colloquy or whether it found the waiver to have been knowing and voluntary. The Court refused to issue a certificate of appealability, stating that any appeal from the order "will be deemed frivolous and not taken in good faith." (J.A. 22).

Mabry, still proceeding pro se, then sought a certificate of appealability from our Court. He contended that the District Court's conclusion that "there was no merits [sic] to appellant's constitutional claims, appellant had waived his appeal rights, defense counsel was not ineffective, and there was no substantial showing of a denial of a constitutional right" was in error. Request for a Certificate of Appealability Pursuant to Rule 22(a)(B)(2), Rules of Appellate Procedure ("Capp Motion") 5. In the same motion, Mabry urged the court to determine whether the waiver was made knowingly and voluntarily. He took the District Court to task for enforcing the waiver, alluding in general terms to his contention that the waiver was not knowing and voluntary. Capp Motion 9 ("[T]here is more than good reason, why, this Court should not enforce the waiver provision of the plea agreement, in light of Campusano v. United States, 442 F.3d 770 (2d Cir.2006). Under the circumstance here, there has been a miscarriage of justice, since the appeal waiver was not knowingly and voluntarily made by appellant.") (all grammatical errors in original).

Mabry did not contend, however, that he was...