Roberts, Wayne v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3092
WAYNE P. ROBERTS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:04cv00762 AS—Allen Sharp, Judge.
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SUBMITTED OCTOBER 17, 2005—DECIDED NOVEMBER 22, 2005
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Before POSNER, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Wayne Roberts is serving a 70-
month sentence for dealing cocaine. He pleaded guilty and,
in exchange for concessions by the government, expressly
agreed not to file a direct appeal or a collateral attack under
28 U.S.C. § 2255:
I also agree not to contest my conviction, my sentence,
any restitution order imposed, or the manner in which
my conviction, the sentence[,] or the restitution order
was determined or imposed on any ground including
any alleged ineffective assistance of counsel in any
appeal under Title 18, United States Code, Section 3742
or in any post-conviction proceeding, including but not
2 No. 05-3092
limited to, [sic] a proceeding under Title 28, United
States Code, Section 2255.
(Plea Agreement at ¶9(i).) In keeping with this commit-
ment, Roberts did not appeal his conviction, but, evidently
having second thoughts, he has now filed a motion under
§ 2255 in which he is attempting collaterally to attack the
criminal judgment. The district court denied relief and
Roberts appealed. There is no question that Roberts’s
waiver encompasses the claims presented in the § 2255
motion. Accordingly, the district court correctly dismissed
the action.
Although the ultimate disposition of this case is straight-
forward, we have observed some confusion with respect
to the appropriate procedures for enforcing plea waivers. In
Roberts’s case, the government initially buried its request
for dismissal in a jurisdictional memorandum, the ostensi-
ble purpose of which is to assure the court that the peti-
tioner’s action is not subject to the pre-approval mechanism
of 28 U.S.C. § 2244(b). At that stage, the record did not
contain a copy of the plea agreement, nor did the govern-
ment do anything to cure that omission. Nothing, as far as
we can tell, actually quoted the waiver language we have
reproduced above. Because waivers differ in their scope, we
found it necessary to order additional briefing on the
question, to ensure that Roberts’s waiver indeed barred his
motion.
In the future, when the government wishes to enforce
a waiver, the better procedure would be to file a separate
motion to dismiss the § 2255 proceeding on this ground, in
which it specifically calls the court’s attention to the waiver.
The plea agreement should be attached to the motion, so
that the court is in a position to ensure that it applies to the
case at hand. We have never been reluctant to hold criminal
defendants to their promises. See, e.g., United States v.
Cieslowski, 410 F.3d 353, 362 (7th Cir. 2005); United States
No. 05-3092 3
v. Sines, 303 F.3d 793, 798 (7th Cir. 2002); United States v.
Whitlow, 287 F.3d 638, 640 (7th Cir. 2002); United States v.
Hare, 269 F.3d 859 (7th Cir. 2001). On the other hand,
there have been cases in which we have rejected an argu-
ment that a waiver of appeal or collateral relief bars an
action. See United States v. Behrman, 235 F.3d 1049, 1052
(7th Cir. 2000). We can accomplish the goal of enforcing
waivers appropriately only if the government clearly alerts
the court to the existence of the waiver and furnishes the
necessary information about its exact terms.
It has now done so in this case, and we therefore DISMISS
Roberts’s appeal on the basis of his waiver.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-22-05