701 F. App'x 686
10th Cir.2017Background
- Evelyne James pleaded guilty in May 2012 to voluntary manslaughter of a child pursuant to a plea agreement that dismissed a first‑degree murder charge and stipulated to a 25–27 year sentence; the agreement included waivers of the right to appeal and to collateral attack (except for ineffective assistance claims).
- Three weeks after the plea but before sentencing, James sought to withdraw her plea and requested substitute counsel; the district court denied withdrawal and sentenced her to 25 years; she did not appeal then.
- James later filed a 28 U.S.C. § 2255 motion alleging, inter alia, ineffective assistance for counsel’s failure to file a direct appeal; the district court granted relief on that claim, vacated and reinstated judgment to allow her to perfect the delayed appeal, and denied the government’s motion to enforce the appeal waiver as premature.
- On appeal, the government moved to enforce the plea agreement’s appeal waiver, arguing the waiver is valid, knowing and voluntary, and its enforcement would not result in a miscarriage of justice.
- James argued the government forfeited enforcement, that the appeal is outside the waiver (it challenges denial of plea withdrawal), that the waiver was not knowing/voluntary, and that enforcing it would cause a miscarriage of justice.
- The Tenth Circuit concluded the government had not forfeited enforcement, held the appeal seeks to contest her conviction (so falls within the waiver), found the waiver knowing and voluntary, and ruled enforcement would not cause a miscarriage of justice; it granted the government’s motion and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument (James) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether the government forfeited the right to enforce the appeal waiver by failing to invoke it earlier in the § 2255 proceedings | Govt delayed and thus forfeited enforcement | Waiver pertains to direct appeals and was not ripe earlier; no forfeiture | No forfeiture; timely to enforce now |
| Whether an appeal of denial to withdraw plea falls within the appeal waiver | This appeal challenges denial of plea withdrawal, not sentence, so outside waiver | Waiver covers appeals of conviction; such appeals include challenges to denial of plea withdrawal | Falls within waiver; appeal waived |
| Whether the appeal waiver was knowing and voluntary | Plea colloquy was cursory; counsel pressure, rushed decision, confusion about charges negate voluntariness | Plea agreement and Rule 11 colloquy show plea and waiver were knowing and voluntary; defendant bears burden to show otherwise | Waiver knowing and voluntary; defendant failed to rebut |
| Whether enforcing the waiver would create a miscarriage of justice | Enforcement would bar review of alleged district‑court error and deprive critical appellate review | No record showing miscarriage; district court considered and denied withdrawal on merits | No miscarriage of justice; enforcement appropriate |
Key Cases Cited
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (framework for evaluating enforceability of appellate waivers)
- United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005) (delayed‑appeal claims not necessarily defeated by existence of waivers)
- United States v. Leon, 476 F.3d 829 (10th Cir. 2007) (appeal of denial to withdraw guilty plea is an attack on conviction and falls within appeal waiver)
- United States v. Rollings, 751 F.3d 1183 (10th Cir. 2014) (consider plea agreement and Rule 11 colloquy when assessing whether waiver was knowing and voluntary)
- United States v. Tanner, 721 F.3d 1231 (10th Cir. 2013) (representations in plea agreement and colloquy often conclusive on voluntariness)
- United States v. Vidakovich, 911 F.2d 435 (10th Cir. 1990) (swift change of heart shortly after plea can support claim plea was not knowing and voluntary)
- United States v. Smith, 500 F.3d 1206 (10th Cir. 2007) (inquiry into lawfulness of waiver focuses on right relinquished—the right to appeal, not the substantive result of the proceeding)