United States v. Vance ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 9, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-6241
(D.C. Nos. 5:05-CR-00208-M-1
SHELLEY ANN VANCE, & 5:16-CV-00535-M)
(W.D. Okla.)
Defendant-Appellant.
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ORDER
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Ms. Shelley Ann Vance pleaded guilty to robbing four banks and
brandishing a firearm during and in relation to one of the robberies. Ms.
Vance was sentenced to 205 months of imprisonment. In district court, she
challenged her sentence under 28 U.S.C. § 2255.
The court rejected this challenge based on timeliness, and Ms. Vance
wants to appeal. To do so, she seeks a certificate of appealability and leave
to proceed in forma pauperis. See 28 U.S.C. § 2253(c)(1)(B) (2012)
(certificate of appealability); id. § 1915(a)(1) (leave to proceed in forma
pauperis). But through a plea agreement, Ms. Vance waived her right to
seek relief under § 2255. In light of this waiver, we (1) decline to issue a
certificate of appealability, (2) dismiss the appeal, and (3) deny leave to
proceed in forma pauperis.
We need not address the issue of timeliness because the plea
agreement contained an enforceable waiver of the right to seek collateral
relief under § 2255. See Davis v. Roberts, 425 F.3d 830, 834 (10th Cir.
2005) (“[W]e may deny a [certificate of appealability] if there is a plain
procedural bar to habeas relief, even though the district court did not rely
on that bar.”). We previously relied on this waiver when we dismissed Ms.
Vance’s direct appeal. United States v. Vance, 182 F. App’x 817 (10th Cir.
2006) (per curiam). The waiver precluded not only a direct appeal but also
a collateral challenge to the way that the sentence is imposed if the
sentence fell within the guideline range found by the district court. Ms.
Vance was sentenced within the guideline range, and we have already held
that the appeal waiver is enforceable. Thus, Ms. Vance could not obtain
relief under § 2255 even if her motion were timely.
In these circumstances, we (1) decline to issue a certificate of
appealability and (2) dismiss the appeal. In the absence of a reasonably
debatable appeal point, we also deny leave to proceed in forma pauperis.
2
See 28 U.S.C. § 1915(a)(3) (2012); Rolland v. Primesource Staffing, LLC,
497 F.3d 1077, 1079 (10th Cir. 2007).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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