United States v. Sanders

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2122
(D.C. Nos. 1:16-CV-00831-RB-LF and
JENNIFER SANDERS, 2:13-CR-03696-RB-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Jennifer Sanders, a federal prisoner proceeding pro se,1 seeks a certificate of
appealability (COA) to appeal the district court’s denial of her 28 U.S.C. § 2255motion. For the reasons discussed below, we deny her request for a COA and dismiss
this matter.
I
Sanders pleaded guilty to one count of conspiracy to distribute
methamphetamine and seven counts of distributing methamphetamine. Although she
faced a maximum of life in prison, the district court imposed a 130-month sentence
*
This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
Because Sanders appears pro se, we liberally construe her pleadings.
Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
based on several downward departures. Sanders didn’t appeal. In fact, Sanders
waived her right to appeal as part of her plea agreement. That agreement included a
“waiver of appeal rights,” which stated that Sanders agreed to waive both her right to
a direct appeal and her right to collaterally attack her sentence “except on the issue of
[her] counsel’s ineffective assistance in negotiating or entering th[e] plea or th[e]
waiver.” R. vol. 2, 22.
Nonetheless, Sanders filed a § 2255 motion challenging her sentence. She
contended that her plea was the “product of coercion” because her attorney failed to
explain how the sentencing guidelines work and led her to believe that she would
receive a sentence of only a few years. R. vol. 1, 21. She also argued that her attorney
provided ineffective assistance of counsel (IAC) by failing to argue for a minor-role
adjustment, failing to file a direct appeal, and failing to investigate whether some of
her prior convictions actually qualified as controlled-substance violations for
purposes of her career-offender enhancement.
In response, the government argued that all of Sanders’ claims fell within the
scope of her collateral-attack waiver. A magistrate judge made proposed factual
findings and recommended denying Sanders’ motion because she had waived her
right to collaterally attack her sentence. Sanders objected to the magistrate judge’s
findings and recommendation, but the district court adopted them, denied Sanders’
motion, and declined to issue a COA. Sanders now seeks to appeal the district court’s
denial of her petition, but she must first obtain a COA. 28 U.S.C. § 2253(c)(1)(B).
2
II
The district court denied Sanders’ motion on procedural grounds: it enforced
her collateral-attack waiver and didn’t reach the merits of her § 2255 motion. When a
district court denies a § 2255 motion on procedural grounds, “a COA should issue
when the prisoner shows, at least, that jurists of reason would find it 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). For the reasons
discussed below, we conclude that reasonable jurists couldn’t debate the district
court’s procedural ruling as to all but one of Sanders’ claims. And even assuming
that reasonable jurists could debate whether the district court correctly dismissed
Sanders’ remaining claim on procedural grounds, reasonable jurists couldn’t debate
whether that claim adequately alleges the denial of a constitutional right.
Accordingly, we deny her request for a COA.
A
We first consider whether reasonable jurists could debate the district court’s
conclusion that the collateral-attack waiver bars the claims in Sanders’ § 2255
motion. Collateral-attack waivers are enforceable if: (1) the defendant’s claims fall
within the scope of the waiver, (2) the defendant knowingly and voluntarily waived
her rights, and (3) enforcing the waiver won’t result in a miscarriage of justice.
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam);
see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (applying
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appeal-waiver standard from Hahn to collateral-attack waivers). The district court
considered each of these elements in turn.
First, the district court found that all of Sanders’ IAC claims fell within the
scope of the collateral-attack waiver and had “nothing to do with an allegation that
her counsel was ineffective in negotiating the plea or the waiver.” R. vol. 3, 93. With
one exception, which we discuss below, Sanders makes similar IAC arguments to this
court, insisting that her counsel should have investigated her career-offender
enhancement and filed a direct appeal. But reasonable jurists couldn’t debate the
district court’s conclusion that these claims fall within the scope of the waiver: they
relate to Sanders’ sentence and not the negotiation of the plea. See Hahn, 359 F.3d at
1325.
Second, the district court found that Sanders knowingly and voluntarily
waived her right to collateral review. Whether a waiver of collateral review is
knowing and voluntary depends primarily on two factors: (1) whether the plea
agreement itself states that the defendant entered the agreement knowingly and
voluntarily and (2) whether there was an adequate colloquy under Rule 11 of the
Federal Rules of Criminal Procedure. See id. The district court carefully examined
both of these factors—looking closely at the terms of the plea agreement and at the
transcript of the plea hearing—and determined that Sanders’ waiver was knowing and
voluntary. No reasonable jurist could debate this conclusion: the plea agreement
clearly stated the nature of the waiver; Sanders indicated that she understood and
agreed to its terms; Sanders’ counsel indicated that he had fully advised her about the
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agreement; and at the plea hearing, the district court specifically discussed the waiver
with Sanders.
Third, the district court concluded that enforcing the appeal waiver wouldn’t
result in a miscarriage of justice. See United States v. Leyva-Matos, 618 F.3d 1213,
1217 (10th Cir. 2010) (“[A] miscarriage of justice [results] only if (1) ‘the district
court relied on an impermissible factor such as race,’ (2) counsel provided ineffective
assistance in connection with the negotiation of the waiver, (3) ‘the sentence exceeds
the statutory maximum,’ or (4) the waiver itself is otherwise unlawful.” (quoting
Hahn, 359 F.3d at 1327)). Sanders didn’t argue below—and doesn’t expressly argue
here—that enforcing the waiver would result in a miscarriage of justice.
Instead, in seeking a COA, Sanders mainly asserts that the sentencing court
incorrectly classified her as a career offender because at least one of her prior
convictions shouldn’t have counted as a controlled-substance offense (and that her
counsel was ineffective for not pursuing this point at sentencing). But because
Sanders’ sentence doesn’t exceed the statutory maximum, we aren’t otherwise
concerned with the lawfulness of her sentence;2 instead, we are concerned only with
the validity of her collateral-attack waiver. See United States v. Porter, 405 F.3d
1136, 1145 (10th Cir. 2005) (enforcing appeal waiver even though defendant’s
2
For purposes of determining whether a waiver of appellate rights will result
in a miscarriage of justice, “statutory maximum” means what it usually means: “the
upper limit of punishment that Congress has legislatively specified for the violation
of a given statute.” United States v. Green, 405 F.3d 1180, 1191–94 (10th Cir. 2005).
Here, the statutory maximum Sanders faced was life in prison; her 130-month
sentence doesn’t exceed that.
5
sentence was based on mandatory application of Guidelines provision that was
subsequently held unconstitutional). That the sentencing court may have misapplied
the career-offender provisions is irrelevant in the face of Sanders’ knowing and
voluntary waiver of her right to collaterally attack her sentence. See United States v.
Nguyen, 235 F.3d 1179, 1184 (9th Cir. 2000) (“The whole point of a waiver . . . is the
relinquishment of claims regardless of their merit.”). It is Sanders’ burden to show
that enforcing the waiver would result in a miscarriage of justice, and she hasn’t done
so here. See Leyva-Matos, 618 F.3d at 1217–18.
B
Last, we turn to Sanders’ claim that her counsel was ineffective in advising her
to enter the plea because he didn’t explain the potential sentence she faced if she
pleaded guilty. This claim arguably falls outside the scope of the collateral-attack
waiver because it’s a claim of “ineffective assistance in . . . entering th[e] plea.”
R. vol. 2, 22; see also United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.
2001) (holding that waiver of postconviction rights doesn’t waive right to bring
§ 2255 motion based on IAC claims challenging validity of plea); United States v.
Fry, 629 F. App’x 823, 826–27 (10th Cir. 2015) (unpublished) (construing argument
that counsel coerced defendant into signing plea agreement as implicating counsel’s
alleged ineffective assistance in “entering” plea). Nevertheless, we need not resolve
this issue; even assuming this claim falls outside the scope of the collateral-attack
waiver, Sanders is only entitled to a COA if she also demonstrates that reasonable
jurists could debate whether she has stated “a valid claim of the denial of a
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constitutional right.” Slack, 529 U.S. at 484. She hasn’t made that showing. The
district court described Sanders’ claim that her attorney didn’t explain the Guidelines
to her as “far-fetched” based on the record. R. vol. 3, 97. And reasonable jurists
couldn’t debate this conclusion: Sanders’ after-the-fact allegation that her attorney
didn’t explain the possible sentences to her flies in the face of the plea agreement and
the plea-hearing colloquy. Cf. United States v. Harvey, 126 F. App’x 916, 918 (10th
Cir. 2005) (unpublished) (denying COA request where district court found that IAC
arguments falling outside collateral-attack waiver lacked merit based on plea
agreement and colloquy).
For instance, the plea agreement stated the maximum and minimum penalties
for each count, including five counts for which the maximum penalty was life in
prison. At the plea hearing, Sanders told the court that she understood the maximum
and minimum penalties and that she had “spent about two hours” with her attorney
discussing the plea. R. vol. 5, 13. Moreover, when the district court told Sanders that
(1) anything counsel might have told her about her likely sentence was only counsel’s
“best estimate or guess,” R. vol. 5, 15, and (2) the court would be free to sentence her
up to the maximum sentence of life in prison, Sanders indicated that she understood.
So even if this claim falls outside of Sanders’ collateral-attack waiver—thus allowing
“jurists of reason” to “debat[e] whether the district court was correct in its procedural
ruling,” Slack, 529 U.S. at 484—reasonable jurists couldn’t debate that Sanders’ bare
allegations are insufficient to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
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* * *
Reasonable jurists couldn’t debate the district court’s procedural ruling that
the collateral-attack waiver bars all but one of Sanders’ IAC claims. And even if we
assume reasonable jurists could debate whether the district court correctly dismissed
Sanders’ final IAC claim on procedural grounds, such jurists nevertheless couldn’t
debate whether it “states a valid claim of the denial of a constitutional right.” See
Slack, 529 U.S. at 484. Thus, we deny Sanders’ COA request and dismiss the matter.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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