United States v. Vasquez ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 6 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-2083
v. (D.C. No. CIV-98-546-JP)
(New Mexico)
MIGUEL VASQUEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. Vasquez pled guilty to two counts of drug trafficking. He filed a
petition under 28 U.S.C. § 2255 claiming ineffective assistance of counsel. The
district court denied the petition on the recommendations of the magistrate. Mr.
Vasquez asks us to grant a certificate of appealability and reverse.
In his plea agreement, Mr. Vasquez expressly waived his right to directly or
collaterally appeal any sentence of twelve years or less, including an express
waiver of any claim of ineffective assistance of counsel. He attempts to challenge
the waiver by asserting that as a Spanish-speaker, his plea was not knowing. We
believe this argument undermined by the record, which indicates that the court
provided a translated copy of his plea agreement as well as an interpreter.
Moreover, in his plea colloquy, Mr. Vasquez acknowledged he made the waiver
voluntarily and knowingly.
Next, Mr. Vasquez contends the court’s oral advisement of his right to
appeal at the end of his sentencing was inconsistent with the terms of the written
agreement and superceded those terms. We disagree and interpret the oral
advisement as consistent with his plea agreement since the court could well have
been advising Mr. Vasquez of his right to appeal any sentence greater than twelve
years, as stipulated in the plea agreement. See United States v. Atterberry, 144
F.3d 1299, 1301 (10th Cir. 1998) (concluding a court’s advisement of a right to
appeal is consistent with a plea term’s conditional waiver of direct appeal).
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The outstanding issue is whether a waiver of a right to make a section 2255
collateral attack based on ineffective assistance of counsel can be enforced. This
court has not decided this issue. While the answer in other circuits turns on
whether the ineffective assistance tainted the voluntariness of the plea or the
waiver agreement itself, see, e.g., Jones v. United States, 167 F.3d 1142, 1144-45
(7th Cir. 1999) (citing cases), we need not reach this issue here.
In the instant case, even if Mr. Vasquez were to prevail on challenging the
validity of the waiver, he cannot prevail on the underlying claim of ineffective
assistance of counsel for failure to cross-examine witnesses, failure to file an
appeal, failure to challenge drug quanitites and for failure to bar him from
agreeing to any waiver. The district court found no ineffective assistance of
counsel. We review the district court's legal conclusions regarding ineffective
assistance of counsel de novo. See United States v. Cook, 49 F.3d 663, 665 (10th
Cir.1995). We agree with the magistrate judge’s conclusions as adopted by the
district court that because Mr. Vasquez pled guilty, a right to cross-examine is
moot. As for the failure to file an appeal, we also agree Mr. Vasquez’ counsel
was within a reasonable range of discretion when he determined that the waiver
agreement barred appeal. In addition, the magistrate properly concluded that
counsel was not ineffective for failure to challenge drug quantities because these
quantities had already been stipulated in the plea agreement. Finally, Mr.
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Vasquez’ vague single sentence that his counsel should have barred him from
agreeing to any waiver suggests his counsel had a duty to override any free will of
Mr. Vasquez’, which is certainly not the role of counsel. See Jones v. Barnes,
463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate authority to make
certain fundamental decisions regarding the case, as to whether to plead guilty,
waive a jury, . . . or take an appeal.”); United States v. Ballejos, 931 F.2d 63, 63
(10th Cir. 1991) (unpublished).
In sum, we agree with the district court that Mr. Vasquez’ claims of
ineffective assistance of counsel are groundless. Accordingly, Mr. Vasquez has
not “made a substantial showing of the denial of a constitutional right” as
required for the issuance of a certificate of appealability, 28 U.S.C. § 2253(c)(2).
We therefore DENY Mr. Vasquez’ motion for a certificate and DISMISS the
appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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