US v. Cockerham

• Decision Date: 18 January 2001
• Docket Number: No. 98-7189,98-7189
• Citation: 237 F.3d 1179
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY DON COCKERHAM, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1179

237 F.3d 1179 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY DON COCKERHAM, Defendant-Appellant.

No. 98-7189

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 18, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. (D.C. No. 98-CV-158-B & 95-CR-49-B)

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

Tommy Don Cockerham filed a pro se brief.

Jeffrey A. Gallant, Assistant United States Attorney (Bruce Green, United States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.

Before EBEL, McKAY, and BRISCOE, Circuit Judges.

McKAY, Circuit Judge.

I.

On October 18, 1995, Defendant Tommy Don Cockerham pleaded guilty in the United States District Court for the Eastern District of Oklahoma to one count of conspiring to distribute narcotics in violation of 21 U.S.C. 846, one count of distributing methamphetamine in violation of 21 U.S.C. 841(a)(1), and one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c). See R., Vol. I, Doc. 4 at 1-2. As part of his plea agreement, Defendant waived his right to appeal the sentence and waived "any appeal rights conferred by 18 USC 3742, any post-conviction proceedings, and any habeas corpus proceedings." Id., Doc. 4, Plea Agreement at 9. The district court subsequently sentenced Defendant to 135 months on each of the first two counts to run concurrently and a consecutive sentence of sixty months on the firearm conviction, along with concurrent four-year terms of supervised release for each count.

After this court affirmed his convictions on direct appeal, see United States v. Cockerham, 108 F.3d 1388, (10th Cir. 1997) (Table), Defendant filed a motion pursuant to 28 U.S.C. 2255 on April 1, 1998. In his habeas petition, Defendant claimed that his Sixth Amendment rights were violated by ineffective assistance of counsel because there was insufficient evidence for his 924(c) conviction pursuant to United States v. Bailey, 516 U.S. 137 (1995), and there was no proof at sentencing of a controlled substance or proof that the substance was D-methamphetamine for the drug trafficking conviction in light of United States v. Glover, 97 F.3d 1345 (10th Cir. 1996). In essence, Defendant contended that, though he did not raise the first two claims in his direct appeal, he is not procedurally barred from raising them in his habeas corpus motion because his claim of ineffective assistance of counsel establishes cause and prejudice. See R., Vol. 1, Doc. 1, Memo at 12. Defendant asserts that, by failing to research the applicable law concerning 924(c) and sentencing for methamphetamine, counsel was ineffective under the test set out in Strickland v. Washington, 466 U.S. 668 (1984). In response, the government filed a motion to dismiss the 2255 motion because "Defendant knowingly and voluntarily waived his appellate rights, [including the right to post-conviction relief,] as part of a lawful plea agreement." R., Vol. 1, Doc. 4 at 4.

In a summary order, the district court denied Defendant's 2255 motion. See id. at Doc. 7. The court found that Defendant had waived his right to appellate relief, including the right to postconviction relief, and that the waiver was enforceable because it was voluntarily and knowingly made. See id. This appeal followed, and we issued a certificate of appealability on the issue of whether, in a plea agreement, a defendant can waive the right to collaterally attack a sentence under 28 U.S.C. 2255 when his 2255 motion alleges ineffective assistance of counsel.¹

On appeal, Defendant argues that his claim of ineffective representation at sentencing survives the general waiver because (1) the agreement implicitly assumed that counsel would act within constitutional bounds and (2) such an extensive waiver would be inconsistent with the special protections that apply to waivers of the right to counsel. He also contends that the waiver does not apply to his ineffectiveness claim relating to the legitimacy of his 924(c) conviction because the waiver was directed only at sentencing issues. In his pro se brief, Defendant argues that the waiver of postconviction proceedings was not knowingly made because he was not specifically informed by the district court about the postconviction relief waiver and because he could not "waive an as yet unknown constitutional violation." Appellant's Br. at 15.

In reviewing the denial of a 2255 motion, we review the district court's legal rulings de novo and its findings of fact for clear error. See United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). Whether a defendant can waive his right to collateral review under 2255 is a question of law that we review de novo. See Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999).

II.

Because this court has not explicitly held that a waiver of 2255 rights in a plea agreement is generally enforceable, we must decide that threshold issue. For the reasons that follow, we hold that such a waiver is generally enforceable. First, it is well established that a defendant's waiver of the statutory right to direct appeal contained in a plea agreement is enforceable if the defendant has agreed to its terms knowingly and voluntarily. See United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1988); accord United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (confirming rule that "courts will enforce a defendant's waiver of his right to appeal if (1) the language of the waiver encompasses the defendant's right to appeal on the grounds claimed on appeal, and (2) the waiver is knowingly and voluntarily made" (citation omitted)). Such agreements waiving the right to appeal are subject to certain exceptions, including where the agreement was involuntary or unknowing, where the court relied on an impermissible factor such as race, or where the agreement is otherwise unlawful. See United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000); United States v. Libretti, 38 F.3d 523, 529 (10th Cir. 1994); see also United States v. Hernandez, 134 F.3d 1435, 1437-38 (10th Cir. 1998) (holding that defendant "clearly waived his right to appeal the sentence imposed" because there was no suggestion that either plea agreement or waiver of statutory right to appeal was unknowing or involuntary); accord United States v. Bushert, 997 F.2d 1343, 1353 (11th Cir. 1993) (holding that defendant's waiver of the right to appeal was not knowing and voluntary because court's Rule 11 colloquy was deficient for failing to clearly inform defendant that he was waiving his appeal rights); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (stating that a defendant does not waive his right to appellate review of a sentence based on race). In addition, "a waiver may not be used to preclude appellate review of a sentence that exceeds the statutory maximum[] or to deny review of a claim that the agreement was entered into with ineffective assistance of counsel." Black, 201 F.3d at 1301 (citation omitted); accord United States v. Joiner, 183 F.3d 635, 645 (7th Cir. 1999) (rejecting ineffective assistance claim on sentencing because appeal rights were "knowingly and intelligently waived"); United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995) ("[D]ismissal 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. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994) (determining that plea agreement waiver cannot bar direct appeal based on ineffective assistance claim concerning plea proceedings). By analogy, the right to bring a collateral attack under 2255 is a statutory right and, like the right to direct appeal, appears to be waivable unless it falls within these same exceptions. Defendant has not provided any argument to persuade us otherwise.

Second, it is well established that a guilty plea is an "admission that [the accused] committed the crime charged against him." North Carolina v. Alford, 400 U.S. 25, 32 (1970). "By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime." United States v. Broce, 488 U.S. 563, 570 (1989). Indeed, in Broce, the Supreme Court held that the defendants had waived their right to challenge their convictions based on double jeopardy because of the well-settled principle that "'a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.'" Id. at 574 (quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)). The Supreme Court's language here strongly reinforces the enforceability of express waivers of collateral attack rights contained in plea agreements.

Third, to date, at least four circuit courts have enforced waivers of collateral attack rights brought pursuant to 2255 where the plea was knowingly and voluntarily entered. See Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (determining that defendant waived right to seek relief under 2255); United States v. Watson, 165 F.3d 486, 488-89 (6th Cir. 1999) (upholding explicit waiver of the right to collaterally attack a sentence under 2255 because it was an informed and voluntary waiver); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (stating that plea agreement may "waive the right to bring a 2255 motion [if] it does so expressly"); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (upholding an express waiver of postconviction proceedings, including 2255, because court could "see no principled means...