DeRoo v. United States

• Decision Date: 15 February 2000
• Docket Number: No. 99-1188,99-1188
• Citation: 223 F.3d 919
• Parties: (8th Cir. 2000) AARON M. DEROO, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 919

223 F.3d 919 (8th Cir. 2000)

AARON M. DEROO, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE.

No. 99-1188

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 15, 2000

Filed: August 31, 2000

Appeal from the United States District Court for the District of North Dakota. [Copyrighted Material Omitted] Before Beam and John R. Gibson, Circuit Judges, and Pratt, ¹ District Judge.

Pratt, District Judge.

Aaron Matthew DeRoo pleaded guilty to a one count indictment for possession of ammunition by a convicted felon in violation of 18 U.S.C. 922(g)(1), 924(a)(2), and 924(e)(1), and was sentenced to 210 months imprisonment with 3 years of supervised release and a $50 special assessment. DeRoo filed a motion pursuant to 28 U.S.C. 2255 to vacate, set aside, or correct his sentence based on ineffective assistance of counsel. Citing to the plea agreement in which DeRoo stated that he waived all rights to contest the conviction or sentence in any post-conviction proceeding pursuant to section 2255, the District Court summarily denied the motion. DeRoo appeals. We affirm in result only, vacate his sentence on other grounds, and remand for resentencing.

I.

On May 2, 1995, while executing a search warrant at DeRoo's residence, officers discovered ammunition belonging to DeRoo, including 34 rounds of 12 and 20-gauge shotgun ammunition, 15 rounds of 7.62 x 39 mm ammunition, 14 rounds of 9 mm ammunition, and 3 rounds of .22 caliber short ammunition. A federal grand jury indicted DeRoo on one count of possession of ammunition by a convicted felon, a violation of 18 U.S.C. 922(g)(1), 924(a)(2), and 924(e)(1). An arrest warrant was issued and a detainer filed with the county correctional facility where DeRoo was being held on state charges.

DeRoo was detained on the federal charges, and at his arraignment and detention hearing he entered a plea of not guilty and was detained pending trial. On the day his trial was to begin, DeRoo changed his plea to guilty pursuant to a Rule 11(e)(1)(B) plea agreement. The plea agreement states that DeRoo waives any right to appeal the judgment and sentence under 18 U.S.C. 3742(a), and that he waives all rights to contest the conviction or sentence in any post-conviction proceeding pursuant to 28 U.S.C. 2255. The plea agreement cites to United States v. His Law, 85 F.3d 379 (8th Cir. 1996) (per curiam), as upholding the enforceability of such a waiver. The plea agreement also states, "defendant understands any appeal or other post-conviction relief that he might seek should be summarily dismissed by the court in which it is filed." The District Court conducted a thorough colloquy, including questions to determine that DeRoo was satisfied with his attorney, and specifically reminded DeRoo that he was waiving his rights to appeal. Thereafter, the District Court accepted DeRoo's plea, finding it knowing and voluntary, and with a factual basis.

The District Court sentenced DeRoo to 210 months imprisonment with 3 years of supervised release and a $50 special assessment. His sentence was enhanced pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), based on three Minnesota convictions: a 1989 plea of guilty to three counts of third degree burglary, a 1990 plea of guilty to one count of second degree burglary, and a 1992 plea of guilty to two counts of fifth degree controlled substance crimes. DeRoo did not file a direct appeal of the District Court's sentence nor did he appeal the conviction or sentence under 18 U.S.C. 3742(a). DeRoo did instruct his counsel to appeal the District Court's decision denying a three-level reduction for acceptance of responsibility, but counsel did not file an appeal.

DeRoo obtained new counsel and filed a motion under 28 U.S.C. 2255 to vacate, set aside, or correct his sentence, claiming he had been deprived of his constitutional right to effective assistance of counsel on a number of grounds. DeRoo claimed original counsel's mistakes resulted in ineffective assistance of counsel under the Sixth Amendment to the United States Constitution, affecting the outcome of the plea process. In particular, DeRoo alleged that he waived his right to trial and was sentenced to 210 months in a federal prison as a result of original counsel's ineffective assistance.

In its ruling on the motion, the District Court stated that DeRoo "specifically and unequivocally waived all rights to contest his sentence in any post-conviction proceeding." United States v. DeRoo, Nos. A3-98-70/C3-96-39, at 2 (D.N.D. filed Nov. 25, 1998) (order denying section 2255 motion). The District Court further noted that DeRoo agreed as part of the plea agreement that any application for such relief should be summarily dismissed. See id. The District Court then denied the motion, "[i]n light of this knowing and voluntary waiver of the right to contest the sentence in any post-conviction proceeding." Id.

II.

We granted a certificate of appealability on the single issue of whether DeRoo validly waived his section 2255 right to challenge his conviction and sentence on the grounds of ineffective assistance of counsel resulting from counsel's failure to file a motion to dismiss the indictment. Appellate review is limited to the issues specified in the certificate of appealability. See Richardson v. Bowersox, 188 F.3d 973, 982 (8th Cir. 1999). We review the District Court's decision de novo. See Latorre v. United States, 193 F.3d 1035, 1038 (8th Cir. 1999) (denial of section 2255 motion without evidentiary hearing reviewed de novo and affirmed only if the motion, files, and record conclusively show the movant is not entitled to relief).

There is no question in this circuit that a knowing and voluntary waiver of direct-appeal rights is generally enforceable. See United States v. Goings, 200 F.3d 539, 543 (8th Cir. 2000). We also have enforced a defendant's plea agreement promise to "waive his right to appeal, or challenge via post-conviction writs of habeas corpus or coram nobis, the district court's entry of judgment and imposition of sentence." His Law, 85 F.3d at 379. This Court has not had prior occasion to address whether a defendant may waive section 2255 collateral-attack rights in a plea agreement. See Latorre, 193 F.3d at 1037 n.1.

As a general rule, we see no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context. See id. (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). The "chief virtues" of a plea agreement are speed, economy, and finality. See United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992). Those virtues are promoted by waivers of collateral appeal rights as much as by waivers of direct appeal rights. Waivers preserve the finality of judgments and sentences, and are of value to the accused to gain concessions from the government. See id.

However, such waivers are not absolute. For example, defendants cannot waive their right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement. See United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.), cert. denied, 525 U.S. 942 (1998). In addition, the decision to be bound by the provisions of the plea agreement, including the waiver provisions, must be knowing and voluntary. See United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999). DeRoo contends that his plea and waiver were not knowing and voluntary as a result of ineffective assistance of counsel. The government simply argues, without discussing the alleged ineffective assistance of counsel, that because DeRoo's waiver was knowing and voluntary, his promise not to appeal should be strictly enforced and the District Court's summary dismissal of his motion affirmed. We reject the government's argument.

A decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside "the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)); Tollet v. Henderson, 411 U.S. 258, 266-67 (1973). Therefore, "[j]ustice 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." Jones, 167 F.3d at 1145 (defendant convicted and entered into cooperation agreement before sentencing). We find the reasoning of Jones not only compelling, but logically required. A defendant's plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel. Other courts agree that a waiver of section 2255 rights does not automatically preclude a defendant from raising ineffective assistance of counsel claims in a post-conviction motion. See United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995) ("dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the plea agreement generally and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of counsel"); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993) (stating waiver does not "categorically" foreclose defendant's right to bring motion under section 2255 for ineffective assistance of counsel); see also United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993) (per curiam) (holding waiver did not preclude Rule 32(d) motion challenging validity of waiver due to ineffective assistance of counsel).

In his section 2255 motion, DeRoo argued that counsel's failure to file a motion to...