Robert J. Demello, Jr. v. United States , 623 F. App'x 969 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 14-14106; 15-10175
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:14-cv-00043-JRH-BKE,
1:10-cr-00203-JRH-BKE-1
ROBERT J. DEMELLO, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
________________________
(August 7, 2015)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Robert J. Demello, Jr., a federal prisoner proceeding pro se, appeals the
denial of his 28 U.S.C. § 2255 motion to vacate his sentence. In the underlying
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criminal proceedings, Demello pled guilty under a written plea agreement to one
count of bank fraud, in violation of 18 U.S.C. § 1344. In exchange for his plea, the
government agreed to dismiss the remaining counts in the indictment and to take
certain actions at sentencing.
The plea agreement contains a “Limited Waiver of Appeal,” which provides
that Demello “voluntarily and expressly waives the right to appeal the conviction
and sentence and the right to collaterally attack the conviction and sentence in any
post-conviction proceeding, including a 28 U.S.C. § 2255 proceeding, on any
ground.” Limited exceptions to the waiver include if the sentence exceeds the
statutory maximum, if the sentence is higher than the advisory sentencing
guideline range as found by the district court, or if the government first appeals.
At the end of the plea agreement, Demello signed his name under an affirmance
stating he had read the plea agreement and understood what it meant and said.
During the Rule 11, Fed. R. Crim. P., plea colloquy, the district judge
reviewed pertinent provisions of the plea agreement with Demello, including,
notably, his decision to waive his right to appeal his sentence except in limited
circumstances. The district judge explained the terms of the appeal waiver, stating
that Demello was agreeing to waive his rights to appeal his sentence, either
through a “direct appeal of [the] conviction and sentence,” or through an “indirect
appeal in a post-conviction proceeding.” Demello responded that he understood
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the waiver and had agreed to it. At the conclusion of the plea hearing, the judge
accepted Demello’s guilty plea and found that it was knowingly and voluntarily
made.
A probation officer prepared a presentence investigation report (“PSR”)
finding that the total loss amount caused by Demello’s fraudulent acts was
$451,656.53. As a result, the probation officer added fourteen levels to the base
offense level under United States Sentencing Guidelines Manual (“U.S.S.G.”)
§ 2B1.1(b)(1)(H). The loss amount was based on what the victim, Southern Bank,
had reported as its losses. Demello filed numerous objections arguing that the
actual loss amount was much lower.
At sentencing, the district court overruled Demello’s objections to the loss
amount. The court determined that Demello failed to provide evidence of the
correct loss amount that refuted Southern Bank’s averment of its actual loss. As a
result, the court applied the 14-level increase under § 2B1.1(b)(1)(H). The court
sentenced Demello to serve 58 months in prison, within the guideline range of 51
to 63 months’ imprisonment, and to pay $451,656.53 in restitution. 1 At the end of
the hearing, the court reminded Demello that he “ha[d] waived the right to attack
this sentence in any post conviction proceeding.”
1
Demello’s sentence does not fit within an exception to the waiver. Demello’s sentence
was not “higher than the advisory sentencing guideline range as found by the sentencing court,”
nor was the sentence above the statutory maximum.
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Despite the waiver, Demello filed a direct appeal of his sentence. Demello’s
appointed counsel then filed a motion to withdraw along with a brief prepared
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Demello
filed a response, arguing that the district court had improperly calculated the loss
amount and committed other errors at sentencing. After an independent review of
the entire record, a panel of this Court agreed with counsel’s assessment that there
were no arguable issues of merit in the appeal, granted counsel’s motion to
withdraw, and affirmed Demello’s conviction and sentence. United States v.
Demello, 511 F. App’x 897 (11th Cir. 2013). The panel also denied Demello’s
petition for rehearing en banc, construed as a motion for reconsideration.
Following this Court’s affirmance of his conviction and sentence, Demello
moved for post-conviction relief under 28 U.S.C. § 2255. In his motion, he
asserted that the district court had erred in calculating the loss amount without
adequate proof and that his attorneys had provided ineffective assistance by failing
to obtain bank records establishing the loss. The government moved to dismiss the
§ 2255 motion based on the sentence-appeal waiver in the plea agreement. The
district court granted the government’s motion to dismiss and denied Demello’s
§ 2255 motion without an evidentiary hearing, concluding that Demello’s claims
were barred from review by a valid collateral-attack waiver in his plea agreement.
The court also denied a certificate of appealability (“COA”).
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Demello appealed to this Court. We granted Demello a COA for one issue:
“Whether the district court erred in deciding, without an evidentiary hearing, that
Demello’s collateral attack waiver barred his claim of ineffective assistance of
counsel for failing to sufficiently investigate or object to the loss amount
calculation for sentencing guideline calculation purposes?”2
We review a district court’s legal conclusions in a § 2255 proceeding de
novo and its findings of fact for clear error. McCarthy v. United States, 320 F.3d
1230, 1231-32 (11th Cir. 2003). The validity of a sentence-appeal waiver is
reviewed de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.
2008). We review the district court’s denial of an evidentiary hearing in a § 2255
proceeding for an abuse of discretion. Winthrop-Redin v. United States, 767 F.3d
1210, 1215 (11th Cir. 2014). Id. We liberally construe pro se filings, including
§ 2255 motions for post-conviction relief. Id.
“A petitioner is entitled to an evidentiary hearing if he alleges facts that, if
true, would entitle him to relief.” Id. at 1216 (internal quotation marks omitted).
But a district court does not need to hold an evidentiary hearing if the allegations in
2
In his appellate brief, Demello also argues the following: (1) the court erroneously
found that his “revised” § 2255 motion, filed after the court entered judgment on his initial
§ 2255 motion, was a second or successive motion; (2) he received ineffective assistance of
counsel when his attorneys did not attempt to negotiate the appeal waiver or advise him of its
consequences; (3) the probation officer failed to conduct a proper presentence investigation;
and (4) the district court made no findings of fact to support its loss calculation. We do not
address the merits of these issues because our review is limited to the issue specified in the COA.
Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998).
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the § 2255 motion are “patently frivolous, based upon unsupported generalizations,
or affirmatively contradicted by the record.” Id. (internal quotation marks
omitted).
A sentence-appeal waiver is valid if the defendant made the waiver
knowingly and voluntarily. Williams v. United States, 396 F.3d 1340, 1341 (11th
Cir. 2005). To establish that the waiver was made knowingly and voluntarily, the
government must show either that (1) the district court specifically questioned the
defendant about the waiver during the plea colloquy, or (2) the record makes it
manifestly clear that the defendant otherwise understood the full significance of the
waiver. Id.; see also United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir.
1993). When a valid sentence-appeal waiver is entered into knowingly and
voluntarily and contains express language waiving the right to collateral review, it
is enforceable and precludes the defendant from collateral attacking a sentence on
the basis of ineffective assistance of counsel. Williams, 396 F.3d at 1342.
On October 14, 2014, the United States Department of Justice issued a
memorandum to all federal prosecutors regarding the enforcement of appeal
waivers in which defendants waive claims of ineffective assistance of counsel on
direct appeal and collateral attack. See Memorandum from James M. Cole, Deputy
Attorney General, to All Federal Prosecutors (Oct. 14, 2014), available at
http://pdfserver.amlaw.com/nlj/DOJ_Ineffective_Assistance_Counsel.pdf (“For
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cases in which a defendant’s ineffective assistance claim would be barred by a
previously executed waiver, prosecutors should decline to enforce the waiver when
defense counsel rendered ineffective assistance resulting in prejudice or when the
defendant’s ineffective assistance claim raises a serious debatable issue that a court
should resolve.”). On at least three occasions since this new policy was
announced, and in response to inquiries from this Court, the government has
withdrawn its reliance on a defendant’s collateral-attack waiver in a pending
appeal. As a result, we have vacated the judgments denying § 2255 relief and
remanded those cases to the district court to afford the defendant an evidentiary
hearing on his claim of ineffective assistance. See Marshall v. United States, 592
F. App’x 919 (11th Cir. 2015); Murdock v. United States, 589 F. App’x 526 (11th
Cir. 2015); Jones v. United States, 582 F. App’x 845 (11th Cir. 2014).
Here, however, in contrast to Marshall, Murdock, and Jones, the government
has not withdrawn its reliance on Demello’s collateral-attack waiver.3
Acknowledging the October 2014 policy statement, the government nonetheless
continues to seek enforcement of the waiver because, “in the federal prosecutor’s
judgment, the alleged ineffective assistance either did not result in prejudice or
3
Contrary to Demello’s assertion, the government is not procedurally barred from
relying on the sentence-appeal waiver. As indicated above, the government moved to dismiss
Demello’s initial § 2255 motion based on the waiver, and that motion was granted. The
government’s response to Demello’s “revised” § 2255 motion, filed after entry of judgment on
his initial § 2255 motion, is not relevant because it is outside the scope of the COA. See Murray,
145 F.3d at 1251.
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does not raise a serious debatable issue.” (Appellee’s Br. at 21). The new policy
does not prohibit prosecutors from seeking to enforce a collateral-attack waiver, so
Demello’s contention that the policy renders the waiver null and void is unavailing.
After careful review, we conclude that Demello’s collateral-attack waiver is
enforceable because he knowingly and voluntarily waived his right to collateral
review. During the plea colloquy, the district court specifically questioned
Demello about the collateral-attack waiver and told him that he was waiving his
right to both a direct appeal and “an indirect appeal in a post-conviction
proceeding.” Demello affirmed that he understood the terms of the waiver and had
agreed to those terms. When asked later by the court as to whether he had any
questions about the matters discussed, Demello responded that he had none. In
addition, the terms of the plea agreement, and the representations Demello made
therein, further show that Demello understood the significance of the waiver. The
waiver expansively provides that Demello waived “the right to collaterally attack
the conviction and sentence in any post-conviction proceeding, including a 28
U.S.C. § 2255 proceeding, on any ground,” and Demello affirmed that he had read
the plea agreement (which, of course, includes the waiver) and understood its
terms. In sum, the circumstances show that Demello was specifically questioned
about the waiver and that he understood its full significance. See Bushert, 997
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F.2d at 1351. Therefore, the government demonstrated that the collateral-attack
waiver was made knowingly and voluntarily. See Williams, 396 F.3d at 1341-42.
Further, the district court correctly concluded that the collateral-attack
waiver in Demello’s plea agreement barred his ineffective-assistance-of-counsel
claim. Demello argued in his § 2255 motion that, because of counsel’s
ineffectiveness, the district court improperly found the total loss amount, which
significantly increased the advisory guideline range. In short, Demello
“attempt[ed] to attack, in a collateral proceeding, the sentence through a claim of
ineffective assistance of counsel during sentencing.” Id. at 1342. The plain
language of the waiver informed Demello that he was waiving a collateral attack
on his sentence “in any post-conviction proceeding, including a 28 U.S.C. § 2255proceeding, on any ground.” Consequently, the collateral-attack waiver in his plea
agreement precludes a § 2255 claim based on ineffective assistance at sentencing.
See id.
Finally, the district court did not abuse its “considerable discretion” by
declining to hold an evidentiary hearing. See Winthrop-Redin, 767 F.3d at 1216.
Despite Demello’s present contentions that he did not understand what rights he
was giving up by executing the appeal waiver and that the waiver therefore was not
knowing and voluntary, he stated under oath during the plea colloquy that he
understood and had agreed to the terms of the sentence-appeal waiver. A strong
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presumption exists that statements made during a plea colloquy are true. See id. at
1216-17. In addition, as explained above, the record otherwise demonstrates that
the sentence-appeal waiver was entered into knowingly and voluntarily. Under the
circumstances, the court was not required to hold an evidentiary hearing. See id.
In sum, the sentence-appeal waiver in Demello’s plea agreement precludes a
§ 2255 claim based on ineffective assistance at sentencing. See Williams, 396 F.3d
at 1342. Accordingly, we affirm the denial of Demello’s § 2255 motion.
AFFIRMED.
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