United States v. Tony Jackson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-35592
Plaintiff-Appellee,
D.C. Nos.
v. 3:18-cv-05657-
BHS
TONY J. JACKSON, 3:14-cr-05242-
Defendant-Appellant. RJB-2
OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 8, 2021
Seattle, Washington
Filed January 3, 2022
Before: Richard A. Paez, Milan D. Smith, Jr., and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
2 UNITED STATES V. JACKSON
SUMMARY *
28 U.S.C. § 2255
The panel affirmed in part and reversed in part the
district court’s order denying Tony Junior Jackson’s
28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence imposed following his plea, pursuant to a written
plea agreement, of guilty to one count of conspiracy to
engage in sex trafficking.
The panel held that Jackson’s notice of appeal was valid
and timely because his two requests for a certificate of
appealability, received before the deadline set forth in
Federal Rule of Appellate Procedure 4(a)(1)(B), made clear
his intention to appeal the district court’s order.
The panel held that Jackson’s § 2255 motion was not an
improper “second or successive” motion under 28 U.S.C.
§ 2244(b) because the factual circumstances underlying the
motion did not occur until after an earlier § 2255 motion had
been resolved.
The panel affirmed the district court’s denial of
Jackson’s claim that the government breached the plea
agreement because, in addition to the written plea
agreement, in which the government promised to
recommend a Sentencing Guidelines range of 120–180
months in prison, Jackson also relied on the government’s
oral promise that it would not offer his codefendant a lesser
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. JACKSON 3
sentence. The panel held that the record was not sufficient
to overcome the presumption that Jackson’s written plea
agreement and his sworn statements during the plea colloquy
described the complete agreement reached between the
parties. The panel further held that Jackson’s claim was
barred by a collateral attack waiver. Under the terms of the
plea agreement, Jackson waived his right to collaterally
attack his sentence other than to challenge the effectiveness
of counsel. The panel held that, because the government did
not breach the plea agreement, the waiver was valid.
Reversing in part, the panel held that the district court
abused its discretion by failing to consider Jackson’s pro se
letter as a request to amend his § 2255 motion to add a claim
of ineffective assistance of trial counsel based on counsel’s
failure to ensure that the government’s oral promise was
made a part of the record. The panel remanded for the
district court to consider the merits of the ineffective
assistance claim in the first instance.
COUNSEL
Lila J. Silverstein (argued), Washington Appellate Project,
Seattle, Washington, for Defendant-Appellant.
Teal Luthy Miller (argued) and Ye-Ting Woo, Assistant
United States Attorneys; Tessa M. Gorman, Acting United
States Attorney, Western District of Washington; United
States Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
4 UNITED STATES V. JACKSON
OPINION
NGUYEN, Circuit Judge:
Tony Junior Jackson appeals from the district court’s
order denying his 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence. Pursuant to a written plea
agreement, Jackson pleaded guilty to one count of
conspiracy to engage in sex trafficking in exchange for the
government’s promise to recommend a Sentencing
Guidelines range of 120–180 months in prison. Despite
assuring the district court during the plea colloquy that there
was no “side agreement,” Jackson now contends that, in
addition to the written plea agreement, he also relied on the
government’s oral promise that it would not offer his co-
defendant, James Young, a lesser sentence. Jackson argues
that the government breached the plea agreement when it
later offered Young a sentence of 90 months in prison.
Jackson also asserts a claim of ineffective assistance of
counsel based on his trial counsel’s failure to ensure that the
government’s oral promise was made a part of the record.
The district court denied Jackson’s § 2255 motion.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
As a preliminary matter, we find that the district court had
jurisdiction over Jackson’s § 2255 motion, and the notice of
appeal to our court was timely. We affirm in part the district
court’s denial of Jackson’s § 2255 motion on the merits, and
reverse and remand in part for the district court to consider
Jackson’s ineffective assistance of counsel claim in the first
instance.
UNITED STATES V. JACKSON 5
I
A
Jackson pleaded guilty to one count of conspiracy to
engage in sex trafficking by force, fraud, and coercion in
November 2015, pursuant to a written plea agreement with
the government.
The plea agreement was fully integrated. It specified that
the written document represented “the entire Plea
Agreement between the parties,” confirmed that Jackson
entered the agreement “freely and voluntarily,” and
disclaimed the existence of any other agreements: “[N]o
threats or promises, other than the promises contained in this
Plea Agreement, were made to induce Defendant to enter his
plea of guilty.” Jackson agreed to waive his right to appeal
or collaterally attack his conviction and sentence, except to
challenge the effectiveness of his counsel. The government
agreed to recommend a 120- to 180-month prison sentence,
dismiss Jackson’s remaining charges, and not to prosecute
Jackson for sex trafficking in other federal districts based on
evidence in its possession at the time.
During the Federal Rule of Criminal Procedure 11 plea
colloquy, the court confirmed Jackson’s understanding of
the written plea agreement 1 and asked whether the
government made any other promises:
The Court: And do these agreements
represent in their entirety any understanding
1
Jackson entered guilty pleas in two cases under two plea
agreements, but only one is at issue here.
6 UNITED STATES V. JACKSON
or agreement that you have with the
government?
The Defendant: Yes.
The Court: There are no side agreements or
anything that is not written down here?
The Defendant: No, there isn’t, Your Honor.
The Court: And you feel you understand the
terms of these agreements?
The Defendant: I do.
The Court: And has anyone made any other
or different promises or assurances to you of
any kind to get you to plead guilty, other than
what’s in these plea agreements?
The Defendant: No, sir.
…
The Court: You also indicated here that
entering into this plea agreement or these
agreements are voluntary, no one has put any
pressure on you to do it except the situation
you find yourself in; is that correct?
The Defendant: Yes, sir.
The Court: And you’ve got the whole
agreement here in these two documents?
UNITED STATES V. JACKSON 7
The Defendant: Yes, I do.
Jackson confirmed that he understood the appeal waiver.
The court accepted Jackson’s guilty plea and later sentenced
him to 140 months in prison with five years of supervised
release.
Now, in his § 2255 motion, Jackson claims that, in
entering a guilty plea, he relied on an off-the-record promise
made by the government. Immediately before the plea
hearing, Jackson’s attorney asked the government whether
his co-defendant Young would receive a better sentence
offer. Jackson and Young were both named in the same
indictment and charged with one count of conspiracy to
commit sex trafficking, among other offenses.
The government does not dispute that a conversation
took place but disputes the exact substance of its response.
According to Jackson, when asked whether Young would
receive a lower sentence offer, the prosecutor promised “that
would not happen” and said: “I promise your co-defendant
is not going to get a better agreement, he’s going to get the
same agreement and the same amount of time if not more.”
Jackson’s attorney at the time, Charles Johnston, also
maintains that the government “verbally promised Mr.
Jackson that, that was not going to happen and that Mr.
Young would not get a better offer but the same offer of time
if not more.” 2 The government concedes it represented that
it did not intend to offer Young a lower sentence, but that
2
Young’s lawyer, Terrence Kellogg, was not present during this
conversation, but in his declaration states that “to the best of my
recollection, [the prosecutor] Mr. Miyake told me that the government
had advised Mr. Jackson that they, the government, would not extend a
more favorable offer to Mr. Young than the offer received by Mr.
Jackson.”
8 UNITED STATES V. JACKSON
this verbal representation was not a part of the plea
agreement. The prosecutor, Bruce Miyake, states in his
declaration: “The government indicated that we had
extended a similar plea offer to Young and that it did not
involve an offer of less than 10 years of imprisonment.” The
government maintains that its statement was not a promise,
and that Jackson’s plea agreement “was not interdependent
upon the government offering Young the same terms as
those accepted by Jackson.”
B
The government initially offered co-defendant Young a
recommendation of a Guidelines sentence of 120–156
months in prison in exchange for his guilty plea to
conspiracy to engage in sex trafficking. Young accepted the
plea agreement and entered a guilty plea in June 2016, a little
over six months after Jackson entered his guilty plea. In
January 2017, Young moved to withdraw his guilty plea on
the ground that the government had failed to disclose
relevant evidence in his case. Over the government’s
objection, the court granted Young’s motion.
After further negotiations, Young pleaded guilty in
August 2017 to a less serious charge of interstate
transportation for the purpose of prostitution. Unlike the
conspiracy to commit sex trafficking charge, which could
result in a life sentence, this offense carried a maximum
statutory sentence of 10 years’ imprisonment. In exchange
for his plea, the government agreed to recommend a binding
prison sentence of 90 months. The court accepted Young’s
guilty plea and imposed a 90-month sentence with three
years of supervised release.
UNITED STATES V. JACKSON 9
C
In January 2017, Jackson filed his first § 2255 motion
claiming ineffective assistance of counsel in the
determination of his base offense level. The motion was
denied in April 2017.
In August 2018, after Young pleaded guilty a second
time and received his 90-month sentence, Jackson filed the
instant § 2255 motion, claiming that the government
breached his plea agreement by offering Young a shorter
sentence. Jackson contends that the government’s oral
promise was binding and induced his guilty plea. As for why
he assured the court during the plea colloquy that there were
no promises outside the written plea agreement, Jackson
explained that he was simply following his attorney’s
instructions. Jackson later sought, in a March 6, 2020 letter
to the court, to add an ineffective assistance of counsel claim
based on his attorney’s failure to commit the government’s
oral promise to writing and his erroneous advice at the plea
hearing.
On March 30, 2020, the district court denied Jackson’s
§ 2255 motion, declined to consider his ineffective
assistance of counsel claim, and granted a certificate of
appealability (“COA”) (“March 30, 2020 Order”). The
district court found that any alleged “promise” was not part
of the plea agreement and thus there was no breach. On June
16, 2020, the court denied Jackson’s motion for
reconsideration.
Jackson appeals the district court’s March 30, 2020
Order and the denial of his motion for reconsideration.
10 UNITED STATES V. JACKSON
II
A
The government initially argued in its briefing that we
lack jurisdiction to hear Jackson’s appeal because his notice
to appeal was untimely and invalid. Although the
government withdrew this challenge shortly before oral
argument, we briefly explain why we have jurisdiction.
We review jurisdictional questions de novo, United
States v. Struckman, 611 F.3d 560, 571 (9th Cir. 2010), and
we review a district court’s order denying or granting an
extension to file a notice of appeal for abuse of discretion,
Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004).
Federal Rule of Appellate Procedure 3(c) requires a
notice of appeal to specify the party taking the appeal, the
order being appealed, and the court to which the appeal is
taken. Fed. R. App. P. 3(c). The requirements of Rule 3(c)
are interpreted liberally, and a technical variance from the
Rule does not defeat jurisdiction if the litigant’s filing is the
“functional equivalent” of what is required under the
procedural Rule. Torres v. Oakland Scavenger Co., 487
U.S. 312, 315–17 (1988); see also United States v. Withers,
638 F.3d 1055, 1061 (9th Cir. 2011) (construing a pro se
appellant’s filing liberally “as the appropriate motion or
notice necessary for [him] to pursue [his] legal claims on
appeal”). The notice of appeal must be timely. Bowles v.
Russell, 551 U.S. 205, 213–14 (2007).
Jackson’s notice of appeal was due on May 29, 2020.
See Fed. R. App. P. 4(a)(1)(B). Before that deadline,
Jackson filed two motions indicating his intent to appeal the
March 30, 2020 Order. First, he mailed a motion to file out
of time and a motion for reconsideration asking the district
UNITED STATES V. JACKSON 11
court for a COA on April 28, 2020, which was filed on May
4, 2020. 3 The next day, realizing the district court had
already granted a COA in its March 30, 2020 Order, Jackson
mailed a “Motion to Construe Request for (COA)” asking
that his previous motion be construed as a request to appeal.
Jackson’s motion to construe was filed on May 11, 2020.
On June 16, 2020, the district court granted Jackson’s
motion to file out of time, denied his motion for
reconsideration on the merits, and denied Jackson’s motion
to construe the COA request as a request to appeal. The
court instructed Jackson to file a notice of appeal by the
standard deadline. By this time, however, the notice of
appeal deadline had already passed. Jackson filed another
notice of appeal on June 26, 2020.
Jackson’s two requests for a COA made clear his
intention to appeal the March 30, 2020 Order—Jackson
referred to the district court’s March 30, 2020 Order in his
pro se motion to construe, and asked that his motion for
reconsideration of the March 30, 2020 Order be construed as
a request to appeal. See Lockman Found. v. Evangelical All.
Mission, 930 F.2d 764, 772 (9th Cir. 1991) (finding that even
errors in the notice of appeal “should not bar appeal as long
as the intent to appeal a specific judgment can be fairly
inferred and the appellee is not prejudiced or misled by the
mistake” (citing United States v. One 1977 Mercedes Benz,
708 F.2d 444, 451 (9th Cir. 1983))). Both were received by
the district court before the May 29, 2020 deadline. We
3
Because his prison was on lockdown, Jackson did not learn of the
court’s March 30, 2020 Order until April 27, 2020, when the Public
Defender’s office notified him that his § 2255 motion had been denied.
12 UNITED STATES V. JACKSON
therefore find that Jackson’s notice of appeal was valid and
timely. 4
B
The government contends that the district court lacked
jurisdiction to hear Jackson’s § 2255 motion because it is an
improper “second or successive” motion. We review this
question de novo. See United States v. Buenrostro, 895 F.3d
1160, 1164 (9th Cir. 2018).
Under 28 U.S.C. § 2244(b), if a habeas petition is second
or successive, “the district court lacks jurisdiction and must
dismiss the petition unless and until the court of appeals
grants an application to file it.” Brown v. Muniz, 889 F.3d
661, 667 (9th Cir. 2018) (citing 28 U.S.C. § 2244(b)(3)(A)).
But not all second-in-time § 2255 motions are “second or
successive.” As we clarified in Brown v. Muniz, a petition
is not second or successive “if the factual predicate for the
claim accrued only after the time of the initial petition.” Id.
(citing United States v. Buenrostro, 638 F.3d 720, 725–26
(9th Cir. 2011) (per curiam)).
Here, Jackson’s § 2255 motion is not “second or
successive” because the factual circumstances underlying
Jackson’s motion did not occur until after his first § 2255
petition had been resolved. See id. Jackson filed his first
§ 2255 motion in January 2017, alleging ineffective
assistance of counsel in connection with the determination
of his base offense level in his sentence. The court denied
the motion in April 2017. In the current motion, which he
4
Because we find that Jackson’s notice of appeal was timely, we do
not address whether Jackson’s motion to reconsider tolled the deadline
to file the appeal.
UNITED STATES V. JACKSON 13
filed in August 2018, Jackson claims the government
breached his plea agreement when it recommended that
Young serve a 90-month sentence in August 2017, four
months after Jackson’s first § 2255 motion was already
resolved.
We are unpersuaded by the government’s argument to
the contrary. According to the government, any alleged
breach of the plea agreement occurred in June 2016, when
the government offered Young its promise to recommend a
sentence of between 120–156 months in prison, which was
lower than Jackson’s recommended sentence range of 120–
180 months. But the government ignores Jackson’s claim
that the government breached his agreement by offering
Young a lower sentence recommendation of 90 months, not
by offering Young a sentence with the same 120-month
minimum. On its face, Jackson’s claim is clearly based on
events that took place after his first petition was resolved.
The district court correctly determined that it had jurisdiction
to hear Jackson’s motion.
C
We next consider the merits of Jackson’s § 2255 motion.
We review the district court’s denial of a § 2255 motion de
novo. United States v. Swisher, 811 F.3d 299, 306 (9th Cir.
2016) (en banc).
A federal prisoner may collaterally attack the legality of
his conviction or sentence through a motion to vacate, set
aside, or correct his sentence under § 2255. 28 U.S.C.
§ 2255(a). Ineffective assistance of counsel claims may be
brought in collateral proceedings under § 2255, Massaro v.
United States, 538 U.S. 500, 504 (2003), and a defendant
who pleads guilty may challenge the knowing and voluntary
nature of his plea, United States v. Kaczynski, 239 F.3d 1108,
14 UNITED STATES V. JACKSON
1113–14 (9th Cir. 2001). Guilty pleas must be “voluntary”
and “knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely
consequences.” Brady v. United States, 397 U.S. 742, 748
(1970). “A habeas petitioner bears the burden of
establishing that his guilty plea was not voluntary and
knowing.” Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir.
2006).
1
Jackson claims that he was induced into pleading guilty
by a verbal promise from the government that it would not
offer Young a shorter sentence recommendation. The
government concedes that a conversation occurred shortly
before Jackson’s plea hearing, but disputes that it made a
binding promise about Young’s sentence or that it induced
Jackson’s plea.
We review de novo whether the government breached a
plea agreement, United States v. Clark, 218 F.3d 1092, 1095
(9th Cir. 2000) (citing United States v. Fisch, 863 F.2d 690,
690 (9th Cir. 1988)), and review the district court’s
interpretation and construction of a plea agreement for clear
error, id. (citing United States v. Ajugwo, 82 F.3d 925, 928
(9th Cir. 1996)).
“[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise
must be fulfilled.” Santobello v. New York, 404 U.S. 257,
262 (1971). It is not enough for a defendant to claim that a
promise was made, however; he must also show that his
guilty plea rested in a significant degree on that promise.
See id.UNITED STATES V. JACKSON 15
Our task is to determine what the defendant reasonably
believed to be the terms of the plea agreement at the time of
his plea. United States v. Franco-Lopez, 312 F.3d 984, 989
(9th Cir. 2002). To do so, we generally limit our review to
the terms of the written plea agreement and the statements
made under oath during the plea colloquy. See Brown v.
Poole, 337 F.3d 1155, 1160 (9th Cir. 2003). “Because a plea
agreement is, at bottom, a contract between the government
and a criminal defendant, for the most part ‘we construe [a]
plea agreement using the ordinary rules of contract
interpretation.’” United States v. Transfiguracion, 442 F.3d
1222, 1228 (9th Cir. 2006) (alteration in original) (citing
Poole, 337 F.3d at 1159).
Because the sworn statements during the plea colloquy
“speak[] in terms of what the parties in fact agree to,” United
States v. Benchimol, 471 U.S. 453, 455 (1985), they “carry a
strong presumption of truth,” Muth v. Fondren, 676 F.3d
815, 821 (9th Cir. 2012). See also Blackledge v. Allison, 431
U.S. 63, 73–74 (1977) (“[T]he representations of the
defendant, his lawyer, and the prosecutor at such a [plea]
hearing, as well as any findings made by the judge accepting
the plea, constitute a formidable barrier in any subsequent
collateral proceedings.”).
At the same time, we are mindful of the unique
constitutional concerns involved in plea agreements: “The
analogy to contract law is, . . . in certain circumstances
imperfect, and we do not always follow it.”
Transfiguracion, 442 F.3d at 1228 (citing United States v.
Barron, 172 F.3d 1153, 1158 (9th Cir. 1999) (en banc)); see
also United States v. Garcia, 956 F.2d 41, 43–44 (4th Cir.
1992) (enforcing the government’s verbal promise not to
make a defendant cooperate and declining to strictly apply
the parol evidence rule where the government conceded it
16 UNITED STATES V. JACKSON
made the promise and wrote the promise in the cover letter
of the plea agreement, but omitted it from the written
agreement itself). “The interests at stake and the judicial
context in which [plea agreements] are weighed require that
something more than contract law be applied.”
Transfiguracion, 442 F.3d at 1229 (internal citation and
quotations omitted).
The record here, however, is not sufficient to overcome
the presumption that Jackson’s written plea agreement and
his sworn statements during the plea colloquy describe the
complete agreement reached between the parties. Jackson’s
plea agreement was fully integrated and unambiguous. The
agreement explicitly states that it constitutes “the entire Plea
Agreement between the parties,” and that “no threats or
promises, other than the promises contained in this Plea
Agreement, were made to induce Defendant to enter his plea
of guilty.” It does not contain any promise about Young’s
plea deal, nor does it condition Jackson’s guilty plea on any
future sentencing offer to Young.
Jackson’s statements to the court during the plea
colloquy were also clear and unambiguous. He explicitly
confirmed that the written agreement was complete and that
the government made no other promises. When asked
whether there were “side agreements or anything that is not
written down” in the plea agreement, Jackson responded:
“No, there isn’t, Your Honor.” And when asked if “anyone
made any other or different promises or assurances” to him
“of any kind to get [him] to plead guilty, other than what’s
in the[] plea agreement[],” Jackson told the court that the
government did not make him any promises. He confirmed
more than once that the written agreement was full and
complete, and agreed that it represented “in [its] entirety any
UNITED STATES V. JACKSON 17
understanding or agreement that [he had] with the
government.”
The timing of the conversation between the parties is
also instructive. Immediately after Jackson’s counsel spoke
with the government about Young, Jackson told the court
that the government made him no promises other than what
was written in the plea agreement. Now, however, Jackson
asks us to ignore his sworn statements, disregard his written
plea agreement, and convert the government’s informal
verbal statement about what it intended to do with Young’s
case into a binding promise. We cannot do so here.
This case is analogous to United States v. Ajugwo, 82
F.3d 925 (9th Cir. 1996). In Ajugwo, the petitioner argued
that during plea negotiations, the government verbally
agreed to waive its right to challenge the applicability of a
sentencing “safety valve” provision. Id. at 927–28. The
alleged verbal promise was explicitly contradicted by the
written terms of the final plea agreement, however, which
reserved the government’s right to argue the sentencing
provision did not apply. Id. The government denied
verbally promising otherwise. Id. The plea agreement was
fully integrated, stating there were “no additional promises,
understandings or agreements” between the government and
the petitioner, and that none could be added “unless in
writing and signed by all parties.” Id. at 929. Because the
plea agreement was unambiguous and fully integrated, we
declined to admit the petitioner’s extrinsic (or “parol”)
evidence to add the alleged verbal promise, and rejected the
claim that the agreement was breached. Id. at 928–29.
Like in Ajugwo, Jackson’s plea agreement is
unambiguous, fully integrated, and expressly disclaims the
existence of other promises. The government denies making
the promise and disputes Jackson’s claims. The use of
18 UNITED STATES V. JACKSON
extrinsic evidence to modify Jackson’s plea agreement is
similarly inappropriate. See United States v. Pacheco-
Osuna, 23 F.3d 269, 271 (9th Cir. 1994) (“[W]e have
previously eschewed the invitation to consider parol
evidence for the purpose of adding terms to or changing the
terms of an integrated plea agreement.”). 5
Jackson primarily relies on Chizen v. Hunter, 809 F.2d
560 (9th Cir. 1986), but that case is distinguishable. In
Chizen, the parties conceded that the petitioner’s attorney
incorrectly told him that if he entered the plea bargain, the
judge had committed not to sentence him to more than ninety
days in jail. Id. at 561. The petitioner argued that this
misrepresentation induced him to plead guilty. Id. at 562.
At his sentencing hearing, when the court handed down a
sentence of more than ninety days, the petitioner asked to
withdraw his plea. Id. at 563. But because he already signed
a waiver affirming that his plea was voluntary and that he
understood the sentence would be decided by the judge, and
he confirmed that he understood his plea during the
colloquy, the government argued that he could not withdraw
his guilty plea despite his attorney’s false inducement. Id. at
562. We found that the waiver form and colloquy statements
did not cure his attorney’s misrepresentations under these
unique circumstances. Id. at 562–63. The petitioner entered
his plea based on the terms his attorney had misrepresented,
and his waiver and colloquy—when examined in light of the
5
Even if we were to consider the extrinsic evidence here, Jackson
has not shown the existence of a binding promise or that his plea rested
in any significant degree on it. See Santobello, 404 U.S. at 262. The
district court therefore did not abuse its discretion in declining to grant
an evidentiary hearing on this issue. See 28 U.S.C. § 2255(b) (an
evidentiary hearing is not required if the “motion and the files and
records of the case conclusively show that the prisoner is entitled to no
relief”).
UNITED STATES V. JACKSON 19
misrepresentation—did not contradict his claim. Id. at 563.
Accordingly, his plea was involuntary and could be
withdrawn. Id.; see also United States v. White, 366 F.3d
291, 295, 297–300 (4th Cir. 2004) (finding “extraordinary
circumstances” to warrant an evidentiary hearing on the
government’s breach of an oral promise when it was
undisputed that petitioner’s counsel erroneously informed
him that his plea was conditioned on the promise, and the
plea agreement and plea colloquy did not contradict his
claim).
In Jackson’s case, of course, the government does not
concede that its statement to Jackson’s counsel was a
promise, and the record before us does not demonstrate that
Jackson entered the plea based on a misrepresentation by his
attorney. Jackson raises several arguments about the
effectiveness of his counsel, which will be explored on
remand when the district court considers his ineffective
assistance of counsel claim, as discussed below. For
instance, Jackson claims he was following his attorney’s
instructions when he disclaimed the verbal promise at the
colloquy and was assured by his attorney that “he would
handle it.” Jackson also contends that his attorney’s failure
to commit the verbal promise into writing constitutes
ineffective assistance of counsel. These issues should be
addressed in the first instance by the district court and thus
are not before us here.
This case also does not rise to the level of Santobello v.
New York, where the government admitted it promised not
to make a sentencing recommendation and its promise
induced the petitioner’s plea. 404 U.S. at 262. When the
government broke its promise, it argued that its breach was
unintentional and immaterial. Id. at 259, 262. The Supreme
Court disagreed and held that the government needed to
20 UNITED STATES V. JACKSON
fulfill the promise it made that induced the petitioner to plead
guilty. Id. at 262–63.
On this record, Jackson’s claim for breach fails.
2
The government also argues that Jackson’s breach of
plea agreement claim is barred by the collateral attack
waiver. Under the terms of the plea agreement, Jackson
waived his right to collaterally attack his sentence other than
to challenge the effectiveness of counsel. We enforce
collateral attack waivers that are knowing and voluntary.
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.
1993); see Fox v. Johnson, 832 F.3d 978, 989 (9th Cir. 2016)
(“We agree that [defendant] had a constitutional right to
enforce the plea agreement, and that a waiver of a
constitutional right must be knowing and voluntary.”
(internal citations omitted)). Jackson does not claim that his
collateral attack waiver was involuntary or otherwise
challenge its validity.
Instead, Jackson argues that the waiver is invalid because
the government breached the plea agreement. See United
States v. Hernandez-Castro, 814 F.3d 1044, 1045 (9th Cir.
2016) (“A defendant is released from his or her appeal
waiver if the government breaches the plea agreement.”
(citing United States v. Gonzalez, 16 F.3d 985, 989–90 (9th
Cir. 1993))). Because we find that the government did not
breach Jackson’s plea agreement, however, we agree with
the district court that Jackson waived his right to collaterally
attack his sentence on this basis. Therefore, the waiver is
enforceable.
UNITED STATES V. JACKSON 21
D
We remand for the district court to consider the merits of
Jackson’s ineffective assistance of counsel claim in the first
instance. Jackson filed a letter on March 6, 2020 asking to
add an ineffective assistance of counsel claim to his § 2255
motion on the grounds that counsel 1) failed to ensure the
government’s promise about Young was included in the
written plea agreement, 2) failed to raise the issue at the plea
hearing, and 3) instructed Jackson to tell the court there were
no other promises aside from the written agreement.
Additional claims may relate back to timely filed § 2255
motions. Fed. R. Civ. P. 15(c); Anthony v. Cambra, 236 F.3d
568, 576 (9th Cir. 2000). An amendment “relates back” if it
“asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set
out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
Pro se motions from prisoners are to be liberally construed.
United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2001).
The district court abused its discretion by failing to
consider Jackson’s pro se letter as a request to amend his
§ 2255 motion to add this claim. In its March 30, 2020
Order, the district court stated that Jackson’s motion “does
not assert a claim of ineffective assistance of counsel,” but
did not address Jackson’s March 6, 2020 request to amend
his § 2255 motion. Jackson’s ineffective assistance of
counsel claim clearly “relates back” to the substance of his
§ 2255 motion, and on remand the district court must grant
his request to amend and consider the merits of this claim.
The collateral attack waiver does not apply to claims of
ineffective assistance of counsel, so this claim is not barred.
AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART.