United States v. James Cheevers ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 5 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 19-55484
Plaintiff-Appellee, D.C. Nos. 3:18-cv-01959-GPC
3:13-cr-00492-GPC
v.
JAMES CHEEVERS, a.k.a. SHORTY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted November 9, 2021
Pasadena, California
Before: COLLINS and LEE, Circuit Judges, and BAKER,** Judge.
James Lee Cheevers appeals the district court’s denial of his motion under
28 U.S.C. § 2255, in which he alleged that his counsel was ineffective in failing to
file a notice of appeal after Cheevers pleaded guilty to one count of conspiracy to
distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Reviewing the district court’s decision de novo, Dickinson v. Shinn, 2 F.4th 851,
857 (9th Cir. 2021), we affirm.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Miller Baker, Judge of the United States Court of
International Trade, sitting by designation.
To establish “that counsel was constitutionally ineffective for failing to file a
notice of appeal,” a defendant “must show (1) that counsel’s representation ‘fell
below an objective standard of reasonableness,’ and (2) that counsel’s deficient
performance prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 476–
77 (2000) (citations omitted). In order to satisfy the first prong, a defendant must
make at least one of the following three showings: (1) that counsel “fail[ed] to
follow the defendant’s express instructions with respect to an appeal”; (2) that “a
rational defendant would want to appeal” and counsel did not consult with the
defendant about appealing; or (3) that the defendant “reasonably demonstrated to
counsel that he [or she] was interested in appealing” and counsel did not consult
with the defendant. Id. at 478, 480. Cheevers failed to make a sufficient showing
as to any of these three alternatives, and his ineffective assistance claim therefore
fails at the first prong.
First, the record before the district court provides no support for Cheevers’
current claim that he expressly instructed counsel to appeal. Cheevers concedes
that his § 2255 motion and supporting papers contained “no explicit statement that
he had asked trial counsel to file a notice of appeal.” Cheevers instead points to his
July 7, 2014 letter to the district court, which claimed that his counsel had not
responded to inquiries from him and his family, and he argues that this letter
supports a reasonable inference that he had given his counsel instructions to file an
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appeal. We disagree. Nothing in the vaguely worded letter suggests that
Cheevers’ unspecified inquiries to his counsel had mentioned anything about filing
a notice of appeal. Rather, the letter indicates that Cheevers was dissatisfied with
his counsel, and wanted new counsel, in order to obtain substantive relief from the
district court—which is exactly how the district court construed the letter. After
the district court later denied Cheevers’ § 2255 motion, Cheevers filed a motion in
this court that was accompanied by a new affidavit claiming for the first time that
his inquiries to counsel were “about her filing the appeal.” However, “[f]acts not
presented to the district court are not part of the record on appeal,” and they
provide no basis for overturning that court’s decision. National Wildlife Fed’n v.
Burlington Northern R.R., Inc., 23 F.3d 1508, 1511 n.5 (9th Cir. 1994); see also
FED. R. APP. P. 10(a).
Second, the record confirms that Cheevers cannot show that, “considering
all relevant factors,” a “rational defendant would have desired an appeal.” Flores-
Ortega, 528 U.S. at 480. The fact that Cheevers pleaded guilty is “a highly
relevant factor in this inquiry,” because it “reduces the scope of potentially
appealable issues.” Id. If there are no non-frivolous grounds to appeal, and no
other special circumstances, then a defendant claiming ineffective assistance for
not filing an appeal has failed to show that a “rational defendant would want to
appeal.” Id. That is the case here.
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Notably, Cheevers’ plea agreement contained an appeal waiver, and he has
provided no non-frivolous grounds for setting aside that waiver as unenforceable.
See Tanner v. McDaniel, 493 F.3d 1135, 1144–47 (9th Cir. 2007). The record
confirms that, in accepting Cheevers’ guilty plea, the district court sufficiently
complied with the requirement of Federal Rule of Criminal Procedure 11 to
“inform the defendant of, and determine that the defendant understands, . . . the
terms of any plea-agreement provision waiving the right to appeal or to collaterally
attack the sentence.” FED R. CRIM. P. 11(b)(1)(N). The court specifically
questioned Cheevers as to whether he had reviewed the plea agreement with his
attorney, “including the provisions regarding waiver of appeal and collateral
attack,” and Cheevers replied, “Yes, Your Honor.” In response to further
questions from the court, Cheevers stated that he was “satisfied with the services of
[his] attorney” and that he did not have any “questions in regard to [his] written
plea agreement.”
Although Cheevers later claimed that his attorney had told him that the
Government agreed that his federal sentence should be concurrent to an
undischarged state sentence, the district court correctly concluded that this
contention was squarely refuted by the record of the plea hearing. As the court
explained, “during the plea colloquy, [Cheevers] acknowledged that all the
promises made by the government were contained in the plea agreement,” and the
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“plea agreement does not provide for concurrent sentences.” Cheevers now
contends that the district court should have undertaken a more searching inquiry
concerning the appeal waiver, but we perceive on this record no non-frivolous
basis on which Cheevers could have challenged on appeal the knowing and
voluntary nature of his appeal waiver. United States v. Watson, 582 F.3d 974, 987
(9th Cir. 2009).
Nor has Cheevers shown that he has any non-frivolous issues to raise on
appeal that would arguably fall outside the scope of his appeal waiver. Cf. Garza
v. Idaho, 139 S. Ct. 738, 745 (2019). Cheevers identifies what he contends are
several non-frivolous issues he could have raised in an appeal of his sentence, but
his only argument that these issues escape his appeal waiver is his assertion that his
appeal waiver was not knowingly and voluntarily made. Because, as we have
explained, Cheevers has identified no non-frivolous ground to challenge that
waiver, the record confirms that any appeal would have been frivolous and a
“rational defendant” would not “have desired an appeal.” Flores-Ortega, 528 U.S.
at 480.
Third, the record confirms that Cheevers cannot show that he “reasonably
demonstrated to counsel that he was interested in appealing.” Id. As an initial
matter, there was no indication at Cheevers’ sentencing that he had any interest in
appealing. The transcript of that hearing reflects that, after the district court orally
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delivered its sentence, Cheevers was asked whether he understood that he had
“waived the right to appeal to the extent possible,” and he said, “Yes.” Moreover,
although Cheevers’ subsequent pro se letters to the district court did express
concerns about counsel’s failure to respond to Cheevers’ inquiries, those letters
said nothing about taking an appeal to this court. Instead, they raised complaints
that the district court properly construed as seeking relief from that court itself.
See supra at 2–3.
Because the record confirms that Cheevers cannot make any of the
preliminary showings necessary to establish that his counsel’s performance “fell
below an objective standard of reasonableness,” Flores-Ortega, 528 U.S. at 476(citation omitted), the district court properly rejected Cheevers’ ineffective
assistance claim without conducting an evidentiary hearing. We therefore affirm
the denial of Cheevers’ § 2255 motion.
AFFIRMED.
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