United States v. Triplett ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
November 15, 2010
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee.
v. No. 10-3052
(D. Ct. No. 5:08-CV-04114-JAR)
DARRELL TRIPLETT, (D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Circuit Judge, TACHA and O’BRIEN, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Petitioner-appellant Darrell Triplett, a federal prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to challenge the dismissal of his petition for habeas
corpus which he brought pursuant to 28 U.S.C. § 2255. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253(c), we DENY Mr. Triplett’s application for a COA, and we
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
DISMISS his appeal.
I. BACKGROUND
On September 22, 2003, Mr. Triplett pleaded guilty to possession and conspiracy
to possess with intent to distribute five kilograms or more of cocaine in violation of 21
U.S.C. §§ 841(a) and 846. Mr. Triplett executed a Petition to Enter Plea of Guilty, in
which he admitted that he had committed the crimes and agreed to waive both his rights
to appeal and to collaterally attack his conviction. Furthermore, Mr. Triplett
acknowledged that he had decided to plead guilty and to waive his rights knowingly and
voluntarily.
Additionally, Mr. Triplett executed a written plea agreement which states:
[Mr. Triplett] knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution,
conviction and sentence. . . . [Mr. Triplett] also waives any right to
challenge a sentence or otherwise attempt to modify or change his sentence
or manner in which it was determined in any collateral attack, including, but
not limited to, a motion brought under Title 28, U.S.C. § 2255 . . . In other
words, [Mr. Triplett] waives the right to appeal the sentence imposed in this
case except to the extent, if any, the court departs upwards from the
applicable guideline range determined by the court.
After conducting a plea colloquy in accordance with Rule 11, the district court accepted
Mr. Triplett’s guilty plea.
At the sentencing hearing, the district court considered and adopted the pre-
sentence report (“PSR”). Relying on the PSR, the district court found that Mr. Triplett’s
relevant conduct included involvement with the distribution of 397.78 kilograms of
cocaine. Applying the United States Sentencing Guidelines, the district court concluded
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that it was required to impose two concurrent sentences of life imprisonment.
Despite having waived his right to appeal, Mr. Triplett filed a direct appeal in this
court. The government moved to enforce the appellate waiver contained in the plea
agreement. While the direct appeal was pending, the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005). In light of Booker, the government withdrew its
motion to enforce the appellate waiver and requested that the case be remanded for re-
sentencing due to plain error. At re-sentencing, the district court varied downward and
imposed concurrent sentences of 360 months’ imprisonment.
Mr. Triplett again sought direct review of his sentence. We denied review,
however, after concluding that his appellate waiver was enforceable. United States v.
Triplett, No. 06-3249, 2007 WL 779282 (10th Cir. Mar. 16, 2007). On September 29,
2008, Mr. Triplett filed the instant § 2255 petition seeking to vacate his sentence. The
district court granted the government’s motion to enforce Mr. Triplett’s collateral attack
waiver and dismissed the petition. Mr. Triplett then filed a motion for reconsideration,
which the district court denied. He now seeks a COA from this court.
II. DISCUSSION
In order to appeal from the denial of a § 2255 petition, a prisoner must obtain a
COA. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). When, as is
the case here, the district court denies a § 2255 petition on procedural grounds, the
prisoner satisfies this burden by demonstrating “that jurists of reason would find it
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debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.” Id.Generally, a waiver of the right to bring a collateral attack is enforceable and
requires dismissal of a § 2255 petition. United States v. Cockerham, 237 F.3d 1179, 1181
(10th Cir. 2001). We enforce such waivers as long as: (1) the disputed collateral attack
falls within the scope of the waiver; (2) the defendant knowingly and voluntarily waived
his right to collateral review; and (3) enforcing the waiver will not result in a miscarriage
of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(reviewing a waiver of appellate rights); see also Cockerham, 237 F.3d at 1182–83
(holding that the enforceability of a waiver of the right to bring a collateral attack is
assessed under the same standards as a waiver of appellate rights).
In his § 2255 petition, Mr. Triplett raises multiple claims challenging the validity
of his plea and sentence. All of Mr. Triplett’s claims fall within the scope of the broad
waiver provisions in his plea agreement; therefore, we need only discuss the second and
third Hahn factors.
Mr. Triplett claims that he did not knowingly and voluntarily waive his right to
collateral review because: (1) he was coerced into the plea agreement by threats that the
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prosecution would indict his mother for participation in his criminal venture; (2) during
the plea colloquy, the district court misled him to believe that he would have the right to
appeal any sentence imposed; and (3) the language of the plea agreement misled him to
believe that his sentence would be based solely on the facts he admitted, not on the
court’s relevant-conduct findings.
We assess the voluntariness of a waiver by looking primarily to the plea agreement
and the plea colloquy. Hahn, 359 F.3d at 1325. Here, Mr. Triplett acknowledged in the
plea agreement and during the plea colloquy that his decision to enter into the plea
agreement was knowing and voluntary. The plea agreement provides, “[Mr. Triplett]
acknowledges that he is entering into this agreement and pleading guilty . . . freely and
voluntarily.” Likewise, during the plea colloquy, Mr. Triplett told the district court that
he understood the terms of his plea agreement and was pleading guilty voluntarily and of
his own free will.
Mr. Triplett fails to point to any evidence other than his self-serving statements to
support his claim that his plea was coerced. Furthermore, such allegations are
undermined by his sworn statements to the court. See Plea Agreement, ¶ 16 (“[Mr.
Triplett] acknowledges that he has read the plea agreement, understands it, and agrees
that it is . . . not the result of any threats, duress or coercion.”). Indeed, during the plea
colloquy, the district court asked Mr. Triplett if anyone pressured or coerced him to enter
into the plea agreement, to which he replied, “No. My counsel just advised this would
probably be [in] my best interest.” Accordingly, we reject Mr. Triplett’s contention that
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he was coerced into entering into the plea agreement.
We also reject Mr. Triplett’s claim that he was misled into pleading guilty by the
district court’s statements during the plea colloquy. We have held that a sentencing
court’s mischaracterization of a waiver provision during a plea colloquy, prior to the
signing of the plea agreement or entry of a guilty plea, can create a material ambiguity
which may render the waiver involuntary and unenforceable. United States v. Wilken,
498 F.3d 1160, 1167– 69 (10th Cir. 2007). Mr. Triplett argues that the following
statement by the district court created such a material ambiguity: “And under some
circumstances, the government has the right to appeal any sentence I impose, and you
[Mr. Triplett] have the right to appeal any sentence I impose.” We disagree. This
statement does not convey, as Mr. Triplett suggests, that he would have an unfettered
right to appeal his sentence. Indeed, it can only be understood to mean that he would
have the right to appeal his sentence “under some circumstances.”
Finally, Mr. Triplett’s claim that the language of the plea agreement misled him to
believe that his sentence would not be based on the court’s relevant conduct findings is
without merit. The relevant portion of the Petition to Enter Plea of Guilty states, “I know
that if I plead ‘GUILTY,’ I am thereby waiving my right to a trial and that there will be
no further trial of any kind.” This statement communicates that Mr. Triplett would not be
subject to any further trial, but it does not suggest that the sentencing court would ignore
relevant conduct when calculating his sentence. Furthermore, the plea agreement clearly
indicates that the court would consider “other uncharged related criminal activity as
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relevant conduct for purposes of calculating the offense level.” And, during the plea
colloquy, the district court went to great lengths to explain how it would consider relevant
conduct in fashioning Mr. Triplett’s sentence. Accordingly, we hold that Mr. Triplett
knowingly and voluntarily entered into the plea agreement and waived his right to
collateral review.
Next, we consider whether enforcing the waiver to bar Mr. Triplett’s claims would
result in a miscarriage of justice. A waiver of post-conviction rights results in a
miscarriage of justice and is therefore unenforceable if: (1) the district court relied on an
impermissible factor such as race; (2) the prisoner’s counsel was ineffective in connection
with the negotiation of the plea agreement; (3) the sentence exceeds the statutory
maximum; or (4) the waiver is otherwise unlawful. Cockerham, 237 F.3d at 1182.
Although the second and fourth of these circumstances are potentially applicable in this
case, neither operates to invalidate Mr. Triplett’s waiver.
To demonstrate ineffective assistance of counsel in connection with the
negotiation of a guilty plea, Mr. Triplett must show that: (1) his “counsel’s representation
fell below an objective standard of reasonableness;” and (2) “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985).
Mr. Triplett alleges that he entered into the plea agreement based on his attorney’s
inaccurate representations that he faced a maximum sentence of fifteen years
imprisonment and would still be able to appeal his conviction. We have held, however,
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that “[a] miscalculation or erroneous sentence estimation by defense counsel is not a
constitutionally deficient performance rising to the level of ineffective assistance of
counsel.” United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993). Moreover, the
district court explained to Mr. Triplett during the plea colloquy that he faced a maximum
penalty of life imprisonment and that he would be able to appeal only in limited
circumstances. Accordingly, Mr. Triplett has not established any constitutionally
deficient performance on the part of his counsel, let alone prejudice because of his
counsel’s error.
Additionally, “[t]o be ‘otherwise unlawful,’ an error must seriously affect the
fairness, integrity or public reputation of judicial proceedings.” United States v. Smith,
500 F.3d 1206, 1212 (10th Cir. 2007) (quotations and alteration omitted). When
determining whether to enforce a collateral-review waiver, we look only “to whether the
waiver [itself] is otherwise unlawful, . . . not to whether another aspect of the proceeding
may have involved legal error.” Id. at 1213 (quotations and emphasis omitted). There is
no evidence in the record to support Mr. Triplett’s contention that his collateral review
waiver calls into question the fairness, integrity, or public reputation of judicial
proceedings. Therefore, we conclude that enforcing the waiver provisions in Mr.
Triplett’s plea agreement would not result in a miscarriage of justice.
Finally, we find no merit in Mr. Triplett’s contention that the government waived
its right to enforce the collateral review waiver by moving to remand after the Supreme
Court’s decision in Booker. Indeed, this argument has already been rejected by a prior
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panel of this court. See Triplett, 2007 WL 779282, at *2. Accordingly, the district court
properly enforced the waiver contained in the plea agreement and correctly dismissed Mr.
Triplett’s § 2255 petition.
III. CONCLUSION
For the foregoing reasons, the district court properly dismissed Mr. Triplett’s §
2255 petition as barred by the waiver provisions in the plea agreement. Accordingly, we
DENY Mr. Triplett’s application for a COA and DISMISS his appeal. We also DENY
his application to proceed in forma pauperis on appeal and his motion for leave to file an
appendix.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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