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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15315
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-00010-ECM-GMB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER IMAN ULMER,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(December 6, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Christopher Ulmer appeals his conviction after pleading guilty to possession
of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). On appeal, Ulmer argues his counsel was ineffective for failing to file
a timely motion to suppress the drugs. Ulmer also says the district court erred
when it denied Ulmer leave to file an untimely motion to suppress. After careful
review, we dismiss both of Ulmer’s claims. See United States v. Tyndale,
209
F.3d 1292, 1294 (11th Cir. 2000) (per curiam) (declining to rule on an ineffective
assistance of counsel claim raised in a direct appeal); United States v. Benitez-
Zapata,
131 F.3d 1444, 1446–47 (11th Cir. 1997) (dismissing an appeal to enforce
the terms of a valid appeal waiver).
I.
In March 2017, probation officers visited a home on Holiday Inn Drive,
looking for Ulmer. At the time, Ulmer was serving a seven-year probation term.
Ulmer’s probation officer believed Ulmer had moved in with a “lady friend” at
Holiday Inn Drive, though Ulmer told probation he was living at another address.
The probation officers found Ulmer and his female friend at the home on Holiday
Inn Drive. Without a warrant, officers searched the home and found marijuana and
methamphetamine in the garage.
In January 2018, a grand jury indicted Ulmer for two counts of possession of
a controlled substance with intent to distribute. Ulmer entered a plea of not guilty.
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On February 7, 2018, a magistrate judge appointed two federal public defenders
for Ulmer. The magistrate judge ordered Ulmer’s attorneys to submit all pretrial
motions, including motions to suppress, by March 12, 2018. Due to a conflict of
interest, both of Ulmer’s attorneys withdrew from his case on March 2.
The magistrate judge appointed a defense attorney under the Criminal
Justice Act (“CJA”) on March 2, but did not reset the March 12 deadline for
pretrial motions. Ulmer’s CJA attorney, who was also preparing for a capital
murder trial, never filed a motion to suppress the drugs found at the Holiday Inn
Drive address. The CJA attorney withdrew from representing Ulmer on June 1,
2018.
Ulmer received yet another defense attorney on June 4, 2018. A week later,
Ulmer’s counsel successfully moved to postpone Ulmer’s trial date to September
4, 2018. However, Ulmer’s new attorney did not request leave to file an untimely
motion to suppress until August 13, 2018.
The magistrate judge denied Ulmer leave to file a late motion to suppress
because he had not shown “good cause for his extended delay” in filing. Ulmer
again requested leave to file a late suppression motion. Ulmer argued he had good
cause for the delay because his attorney was appointed on June 1, months after the
March 12 deadline for pretrial motions had passed, and his new attorney needed
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time to evaluate the merit of filing a suppression motion. The district court
rejected Ulmer’s argument and denied him leave to file a suppression motion.
On August 30, 2018, Ulmer pled guilty to one count of possession of
methamphetamine with intent to distribute. Ulmer’s written plea agreement
included this appeal waiver:
[T]he defendant expressly waives any and all rights
conferred by 18 U.S.C. § 3742 to appeal the conviction
or sentence. The defendant further expressly waives the
right to attack the conviction or sentence in any post-
conviction proceeding . . . . Exempt from this waiver is
the right to appeal or collaterally attack the conviction or
sentence on the grounds of ineffective assistance of
counsel or prosecutorial misconduct.
At the change-of-plea hearing, the magistrate judge asked Ulmer, “Do you
understand that by pleading guilty with this plea agreement, you will have waived,
or given up, your right to appeal or collaterally attack all or part of your sentence?”
Ulmer confirmed he understood. The magistrate judge then accepted Ulmer’s plea
as “knowing and voluntary.”
Ulmer timely appealed.
II.
This Court reviews de novo claims of ineffective assistance of counsel.
McNair v. Campbell,
416 F.3d 1291, 1297 (11th Cir. 2005). But we will not
address claims for ineffective assistance of counsel on direct appeal, “[e]xcept in
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the rare instance when the record is sufficiently developed.” United States v.
Verbitskaya,
406 F.3d 1324, 1337 (11th Cir. 2005) (citation omitted).
We also review a district court’s denial of leave to file an untimely motion to
suppress for abuse of discretion. See United States v. Taylor,
792 F.2d 1019, 1025
(11th Cir. 1986). However, we cannot consider arguments foreclosed by a valid
waiver of appeal. See United States v. Johnson,
541 F.3d 1064, 1068–69 (11th
Cir. 2008). To determine whether Ulmer’s sentence appeal waiver was valid, we
perform a de novo review.
Id. at 1066.
III.
A.
Ulmer argues his attorneys were ineffective for failing to file a timely
motion to suppress the drugs found at the home on Holiday Inn Drive. 1
Specifically, Ulmer says his CJA attorney was ineffective for missing the pretrial
motion deadline and never filing a motion to suppress. And he says his next (and
last) attorney was ineffective for filing a suppression motion “over 150 days past
the deadline for filing pretrial motions, and over 70 days after filing his notice of
appearance.”
1
Ulmer’s claim for ineffective assistance is not barred by his appeal waiver, since his
waiver explicitly reserved his right to appeal “on the grounds of ineffective assistance of
counsel.”
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We decline to consider Ulmer’s ineffective assistance claim, however,
because the record before us is not adequately developed. “[A] claim of
ineffective assistance of counsel may not be raised on direct appeal where the
claim has not been heard by the district court nor a factual record developed.”
United States v. Khoury,
901 F.2d 948, 969 (11th Cir. 1990). For instance, the
record does not reveal why Ulmer’s attorneys failed to file a timely suppression
motion, which would reveal whether they performed deficiently. See Green v.
Nelson,
595 F.3d 1245, 1251 (11th Cir. 2010) (contrasting attorneys’ “strategic
choice” not to file a motion to suppress with “inaction resulting from an admittedly
mistaken view of the evidence in the case”). And without more information about
Ulmer’s relationship to the home on Holiday Inn Drive, we also cannot say
whether a motion to suppress the drugs Ulmer possessed would have merit. Cf.
United States v. Curbelo,
726 F.3d 1260, 1267 (11th Cir. 2013) (“[I]t goes without
saying that counsel is not ineffective for failing to file a meritless suppression
motion.”).
We therefore dismiss Ulmer’s claim without prejudice to his remedy under
28 U.S.C. § 2255. See
Khoury, 901 F.2d at 969.
B.
Ulmer also argues that the district court abused its discretion by denying him
leave to file a late motion to suppress. The government responds that this claim is
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barred by the appeal waiver in Ulmer’s written plea agreement, which reserved
only Ulmer’s claims for ineffective assistance of counsel and prosecutorial
misconduct.
To enforce an appeal waiver, defendant must enter into the waiver
knowingly and voluntarily. United States v. Bascomb,
451 F.3d 1292, 1294 (11th
Cir. 2006). A waiver is valid if the government shows that the district court
specifically questioned the defendant about the waiver.
Johnson, 541 F.3d at 1066.
The government has met its burden here. The record shows the magistrate
judge explained the terms of the appeal waiver to Ulmer. Specifically, the
magistrate judge told Ulmer he would ordinarily “have the right to appeal any
sentence that’s imposed,” but by accepting the plea agreement, Ulmer would
“waive[], or give[] up,” his right to appeal. After the plea colloquy, the court
found Ulmer had entered his plea knowingly and voluntarily. See United States v.
Buchanan,
131 F.3d 1005, 1008 (11th Cir. 1997) (per curiam) (holding an appeal
waiver was knowingly and voluntarily entered because the plea “colloquy
establishes that the defendant understood the nature and extent of the appeal
waiver and agreed to it”). Thus, we will enforce Ulmer’s plea agreement
according to its terms and dismiss his claim that the district court abused its
discretion.
DISMISSED.
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