United States v. McElroy
673 F. App'x 896
| 10th Cir. | 2017Background
- McElroy pleaded guilty to conspiracy to possess with intent to distribute methamphetamine and was sentenced to 110 months' imprisonment.
- Her written plea agreement contained an explicit waiver of appellate rights; at the change-of-plea hearing she confirmed she reviewed the agreement with counsel and understood the waiver.
- Final judgment entered September 25, 2015. McElroy then filed a 28 U.S.C. § 2255 motion contesting her conviction and sentence.
- Her § 2255 asserted ineffective assistance of counsel (counsel told her she could not appeal, failed to present a defense, and withheld discovery), alleged insufficiency of the evidence, and sought relief under Johnson v. United States.
- The district court dismissed the claims as meritless or insufficiently pled and denied a certificate of appealability (COA). McElroy appealed seeking a COA from the Tenth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Johnson claim | Johnson invalidates residual clauses; entitles McElroy to sentence reduction | McElroy was not sentenced under ACCA or similar residual-clause statutes | Denied — claim lacks merit because McElroy was not sentenced under ACCA and was sentenced after Johnson |
| Sentencing disparity | Sentence should be reduced for an undefined disparity | Argument not raised below; sentence already below Guidelines | Waived and rejected |
| Counsel told her she could not appeal | Counsel's statement prevented McElroy from appealing, ineffectiveness | Waiver was knowing and voluntary; written waiver and on-the-record confirmation | Rejected — counsel’s statement alone does not establish ineffective assistance |
| Failure to present a defense / withhold discovery | Counsel failed to mount a defense and withheld discovery, causing prejudice | Claims lack factual support in the § 2255 filing | Rejected — petitioner failed to plead facts showing deficient performance or prejudice |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuing a certificate of appealability)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance-of-counsel test)
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (appellate-waiver enforceability requires knowing and voluntary waiver)
- United States v. Fisher, 38 F.3d 1144 (10th Cir. 1994) (pleading standards for ineffective-assistance claims)
- United States v. Lee Vang Lor, 706 F.3d 1252 (10th Cir. 2013) (issues not raised below are waived)