United States v. Albers
684 F. App'x 742
| 10th Cir. | 2017Background
- In 2014 Derrick Jay Albers pleaded guilty to conspiracy to commit wire fraud and received a 120-month sentence; his plea agreement contained a broad waiver of appellate and collateral-attack rights (except if sentence exceeded the guideline range).
- Albers’ direct appeal was dismissed after the government moved to enforce the plea-waiver.
- In 2016 Albers filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel, including that counsel failed to explain the appellate/collateral-attack waiver; the government invoked the waiver to oppose relief.
- The district court found Albers’ ineffective-assistance allegations about the waiver insufficient to invalidate the waiver (citing the plea colloquy) and concluded the waiver barred his § 2255 claims.
- Albers then filed a Rule 59(e) motion for amended judgment arguing the court erred and that the waiver was ambiguous; the district court treated the Rule 59(e) filing as a second or successive § 2255 motion and dismissed for lack of jurisdiction.
- Albers sought a certificate of appealability (COA); the Tenth Circuit denied a COA, holding the procedural ruling (that the Rule 59(e) motion was a successive § 2255 claim requiring prior authorization) was not debatable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 59(e) motion reasserting the merits of a denied § 2255 claim is a second or successive § 2255 motion | Albers argued the Rule 59(e) motion simply sought correction of the judgment and relied on Cockerham to preserve his right to raise ineffective-assistance claims via § 2255 | Government treated the filing as an unauthorized second or successive § 2255 that required circuit authorization | The court held such a Rule 59(e) motion that revisits the merits is a second or successive § 2255 and the district court lacked jurisdiction without circuit authorization |
| Whether the plea-waiver barred Albers’ ineffective-assistance claims | Albers contended the waiver was ambiguous and did not expressly waive § 2255 or ineffective-assistance claims; he said he would not have agreed if he knew its scope | Government argued the waiver was broad and the plea colloquy showed Albers understood its scope, so the waiver barred collateral attack | The district court’s view that the waiver (supported by the plea colloquy) barred the § 2255 claims was not shown to be procedurally debatable on appeal |
| Whether Albers timely appealed the district court’s initial denial of relief | Albers did not pursue an appeal from the first district-court order within the applicable time | Government noted the proper procedural course was to appeal the first order rather than re-litigate in a Rule 59(e) filing | Court agreed the proper path was an earlier appeal and that failure to do so rendered the Rule 59(e) filing improperly successive |
| Whether a COA should issue given procedural dismissal | Albers argued jurists could debate both the merits and procedural rulings | Government maintained the procedural ruling was correct and not debatable | The court denied a COA because Albers failed the procedural prong of Slack; the procedural ruling was not debatable |
Key Cases Cited
- United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001) (discusses circumstances in which collateral-attack rights survive plea waivers)
- Slack v. McDaniel, 529 U.S. 473 (2000) (COA standard when district court dismisses on procedural grounds)
- United States v. Pedraza, 466 F.3d 932 (10th Cir. 2006) (Rule 59(e) motion that revisits § 2255 merits is a second or successive § 2255)
- In re Cline, 531 F.3d 1249 (10th Cir. 2008) (district court lacks jurisdiction to entertain successive § 2255 claims absent circuit authorization)
- United States v. Harper, 545 F.3d 1230 (10th Cir. 2008) (COA required to appeal the denial of § 2255 relief)
- Garza v. Davis, 596 F.3d 1198 (10th Cir. 2010) (liberal construction of filings by pro se litigants)