237 F.3d 1179 | 10th Cir. | 2001
Lead Opinion
I.
On October 18, 1995, Defendant Tommy Don Cockerham pleaded guilty in the United States District Court for the Eastern District of Oklahoma to one count of conspiring to distribute narcotics in violation of 21 U.S.C. § 846, one count of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1), and one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). See R., Vol. I, Doc. 4 at 1-2. As part of his plea agreement, Defendant waived his right to appeal the sentence and waived “any appeal rights conferred by 18 USC § 3742, any post-conviction proceedings, and any habe-as corpus proceedings.” Id., Doc. 4, Plea Agreement at 9. The district court subsequently sentenced Defendant to 135 months on each of the first two counts to run concurrently and a consecutive sentence of sixty months on the firearm conviction, along with concurrent four-year terms of supervised release for each count.
In a summary order, the district court denied Defendant’s § 2255 motion. See id. at Doc. 7. The court found that Defendant had waived his right to appellate relief, including the right to postconviction relief, and that the waiver was enforceable because it was voluntarily and knowingly made. See id. This appeal followed, and we issued a certificate of appealability on the issue of whether, in a plea agreement, a defendant can waive the right to collaterally attack a sentence under 28 U.S.C. § 2255 when his § 2255 motion alleges ineffective assistance of counsel.
On appeal, Defendant argues that his claim of ineffective representation at sentencing survives the general waiver because (1) the agreement implicitly assumed that counsel would act within constitutional bounds and (2) such an extensive waiver would be inconsistent with the special protections that apply to waivers of the right to counsel. He also contends that the waiver does not apply to his ineffectiveness claim relating to the legitimacy of his § 924(c) conviction because the waiver was directed only at sentencing issues. In his pro se brief, Defendant argues that the waiver of postconviction proceedings was not knowingly made because he was not specifically informed by the district court about the postconviction relief waiver and because he could not “waive an as yet unknown constitutional violation.” Appellant’s Br. at 15.
In reviewing the denial of a § 2255 motion, we review the district court’s legal rulings de novo and its findings of fact for clear error. See United States v. Cox, 83 F.3d 336, 338 (10th Cir.1996). Whether a defendant can waive his right to collateral review under § 2255 is a question of law that we review de novo. See Jones v. United States, 167 F.3d 1142, 1144 (7th Cir.1999).
II.
Because this court has not explicitly held that a waiver of § 2255 rights in a plea agreement is generally enforceable, we must decide that threshold issue. For the reasons that follow, we hold that such a waiver is generally enforceable. First, it is well established that a defendant’s waiver of the statutory right to direct appeal contained in a plea agreement is enforceable if the defendant has agreed to its terms knowingly and voluntarily. See
Second, it is well established that a guilty plea is an “admission that [the accused] committed the crime charged against him.” North Carolina v. Alford, 400 U.S. 25, 32, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). “By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Indeed, in Broce, the Supreme Court held that the defendants had waived their right to challenge their convictions based on double jeopardy because of the well-settled principle that “ ‘a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.’ ” Id. at 574, 109 S.Ct. 757 (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). The Supreme Court’s language here strongly reinforces the enforceability of express waivers of collateral attack rights contained in plea agreements.
Third, to date, at least four circuit courts have enforced waivers of collateral attack rights brought pursuant to § 2255 where the plea was knowingly and voluntarily entered. See Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.2000) (determining that defendant waived right to seek relief under § 2255); Watson v. United States, 165 F.3d 486, 488-89 (6th Cir.1999)
In light of these considerations, we conclude that a waiver of collateral attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made. Of course, the same exceptions to the waiver of the right to appeal, if they arise, would be available to the waiver of the right to collateral attack. In other words, the constraints which apply to a waiver of the right to direct appeal also apply to a waiver of collateral attack rights.
III.
Concluding that plea-agreement waivers of § 2255 rights are generally enforceable does not end our analysis. We must decide a question of first impression, namely, whether a plea agreement that waives the right to file postconviction relief under § 2255 is enforceable when the § 2255 petition claims ineffective assistance of counsel.
It is significant that some of the circuit courts which have enforced § 2255 waivers have, at the same time, suggested that such a waiver may not apply to a collateral attack based on an ineffective assistance of counsel claim. See, e.g., Wilkes, 20 F.3d at 653 (observing that “[s]uch a waiver may not always apply to a collateral attack based upon ineffective assistance of counsel”); Pruitt, 32 F.3d at 433 (expressing “doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel’s erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain”); Abarca, 985 F.2d at 1014 (refusing to hold that a waiver “categorically forecloses” a § 2255 petition claiming “ineffective assistance of counsel or involuntariness of waiver”); cf. United States v. Djelevic, 161 F.3d 104, 107 (2d Cir.1998) (recognizing in context of direct appeal that a claim of “ineffective assistance of counsel in entering the plea agreement ... might cast doubt on the validity of [the] waiver”).
This court has expressly declined to answer whether a § 2255 waiver would be effective in the face of ineffective assistance of counsel claims. See United States v. Vasquez, 194 F.3d 1321, (10th Cir.1999) (Table) (noting that “the issue [of] whether a waiver of a right to make a § 2255 collateral attack based on ineffective assistance of counsel can be enforced” has not been decided in this court but not reaching the issue because addressing the merits of the ineffective assistance claims); accord Watson, 165 F.3d at 488-89 & n. 4 (noting that court was not addressing the question
Though it appears that the circuit courts have often skirted the issue facing us today, the Seventh Circuit has explicitly addressed the effectiveness of a waiver of collateral rights in the face of a § 2255 claim alleging ineffective assistance of counsel or involuntariness of the plea. The Seventh Circuit first spoke on this question in its decision in Jones v. United States, 167 F.3d at 1144-45. There, the court addressed “whether a cooperation agreement that waives the right to file a petition under § 2255 bars a defendant from arguing that he received ineffective assistance of counsel when negotiating the agreement or that the agreement was involuntary.” Id. at 1144. The court stated that a § 2255 waiver in such an agreement is not effective or enforceable when a defendant claims ineffective assistance of counsel in connection with the negotiation of the plea agreement or the voluntariness of the plea. Reasoning that “|j]ustice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself-the very product of the alleged ineffectiveness,” the court reinforced that “the right to mount a collateral attack pursuant to § 2255 survives [a waiver] only with respect to those discrete claims which relate directly to the negotiation of the waiver.” Id. at 1145. Because the court determined that the defendant “failed to adequately specify his claim of ineffective assistance of counsel,” id. at 1146, it declined to remand and affirmed the district court’s denial of the defendant’s § 2255 motion.
We are persuaded by the Seventh Circuit’s determination that “a claim of ineffective assistance of counsel in connection with the negotiation of a [plea] agreement cannot be barred by the agreement itself.” Id. at 1145. It is altogether inconceivable to hold such a waiver enforceable when it would deprive a defendant of the “opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.” Id. That said, we turn to the question of whether all ineffective assistance of counsel claims not relating to the validity of the plea, i.e., the negotiation or entering of the plea and waiver, are completely foreclosed by such a waiver.
It is clear that the Seventh Circuit’s analysis to determine whether ineffective assistance claims brought pursuant to § 2255 are enforceable turns on “whether the ineffective assistance tainted the volun-tariness of the plea or the waiver agreement itself.” Vasquez, 194 F.3d 1321; see Jones 167 F.3d at 1145. As a result, under Seventh Circuit precedent, claims of ineffective representation concerning sentencing generally do not survive the § 2255 waiver. See Mason, 211 F.3d at 1067; Jones, 167 F.3d at 1145.
In Mason, 211 F.3d at 1066, for example, the defendant pleaded guilty to participating in a drug conspiracy and waived his right to appeal or to collaterally attack his sentence under § 2255. He then filed a § 2255 motion arguing that he had received ineffective assistance of counsel and was denied due process. Specifically, he claimed that he would have received a lower sentence had his counsel objected to the court’s misapplication of the guidelines and to the amount of drugs attributed to him. See id. at 1067. The district court denied the petition, explaining that “although [the defendant] couched his argument in terms of ineffective assistance and denial of due process, his petition was, in reality, merely an attack on his sentence and the manner in which it was determined.” Id. at 1068. On appeal, the defendant asserted that he was not challenging his sentence but was challenging his counsel’s deficient performance. He further contended that because effective assistance of counsel is a fundamental right, “no defendant may ever waive the right to seek post-conviction relief on the grounds of ineffective assistance of counsel.” Id.
Applying Jones, the Seventh Circuit determined that the pivotal question was whether the defendant’s claim related to
To assess the validity of a § 2255 waiver, other courts too have distinguished between a claim of ineffective assistance in entering or negotiating the plea versus a claim of ineffectiveness at sentencing. See, e.g., Pruitt, 32 F.3d at 433 (determining that because defendant’s ineffectiveness claim under § 2255 did not relate to the plea or plea agreement but related only to the alleged mishandling of sentencing the court did not need to decide whether a defendant could in fact waive a claim of ineffective assistance); Balbuena, v. United States, 104 F.Supp.2d 218, 220 (S.D.N.Y.2000) (holding that ineffective assistance claim was not barred by waiver in plea agreement because claim that plea was unknowing and involuntary due to her attorney’s erroneous advice about stipulating to judicial deportation and its potential benefits to her sentence related to negotiation of plea agreement); see also Thompson v. United States, No. 99-C-1778, 2000 WL 821711, at *2-*3 (N.D.Ill. June 23, 2000) (addressing merits of portion of defendant’s ineffective assistance of counsel claim brought in § 2255 motion that challenged whether waiver was fully informed, but enforcing waiver for part of ineffectiveness claim relating to counsel’s performance at sentencing); United States v. Flunker, No. CRIM. A. 98-75, 2000 WL 823469, at *5, *7 (E.D.La. June 23, 2000) (holding that defendant’s waiver of right to collaterally attack his sentence bars claims of ineffectiveness with respect to attorney’s performance at sentencing but would not bar ineffectiveness claims with respect to plea agreement itself); United States v. Carrasco, No. 99-C-559, 1999 WL 286083, at *2-*3 (N.D.Ill. Apr.29, 1999) (holding that waiver of § 2255 rights was valid as to three of defendant’s claims which concerned counsel’s and court’s errors on downward departures at sentencing, but waiver was unenforceable as to fourth claim which asserted that plea was unknowing because counsel did not pursue appropriate departures that should have been included in plea agreement-a claim that could be construed as arguing that defendant did not knowingly waive his § 2255 rights); cf. Nunez, 223 F.3d at 959 (holding that waiver of right to appeal sentence on direct appeal encompasses claim that counsel was ineffective on sentencing issues, but declining to “decide whether a defense counsel’s incompetence may be so egregious as to render a defendant’s waiver involuntary, thereby permitting an ineffective assistance of counsel claim on direct appeal”); Djelevic, 161 F.3d at 107 (enforcing defendant’s waiver of direct appeal rights because defendant neither contended that the waiver was unknowing or involuntary nor suggested that he received ineffective assistance of counsel in entering the plea but was “in reality ... challenging the correctness of his sentence” “despite his effort to dress up his claim as a violation of the Sixth Amendment”).
Defendant, on the other hand, argues that ineffective assistance claims may never be waived in a plea agreement without an explicit, knowing, and voluntary waiver of such a claim or of the right to effective assistance of counsel.
Defendant’s reliance on Attar is misplaced. We disagree with Defendant’s broad characterization of Attar. We read Attar more narrowly, that is, the Attar defendants’ waivers surely fit into the category of a claim of unknowing or unintelligent plea agreements. Because the Attar defendants had no representation when they attempted to withdraw their pleas, their argument can reasonably be construed as an attack on the validity of the plea agreements as unknowing or unintelligent. At least one Fourth Circuit case has interpreted Attar similarly, stating that a “valid appeal waiver does not bar review of [a Sixth] Amendment challenge to plea proceedings.” United States v. Broughton Jones, 71 F.3d 1143, 1147 (4th Cir.1995). Additionally, the plea waiver provision in Attar specifically reserved the “right to appeal based upon grounds of ineffective assistance of counsel ... not known to the Defendants at the túne of the[ir] ... guilty plea.” Id. at 729. This provision clearly distinguishes Attar from this case, even though the Fourth Circuit did not explicitly rely on it in its decision.
The courts that have differentiated between ineffectiveness claims attacking the validity of the plea or waiver and claims challenging counsel’s performance with respect to sentencing have not adequately explained why they make this distinction. See, e.g., Jones, 167 F.3d at 1145 (stating merely that the right to “collateral attack pursuant to § 2255 survives [a waiver] only with respect to those discrete claims which relate directly to the negotiation of the waiver [or the plea agreement]”). Nevertheless, we believe that the rationale for distinguishing between the types of ineffective assistance claims that may survive a waiver is buttressed by the Supreme Court’s analysis in Broce, 488 U.S. 563,109 S.Ct. 757, 102 L.Ed.2d 927. There the
In light of these statements by the Supreme Court in Broce, there appear to be two critical components to determining whether the right to collateral relief survives a waiver. The first is whether there is any basis for a claim of ineffective assistance of counsel, and the second is whether that ineffectiveness claim pertains to the validity of the plea. As a result, subject to the same exceptions that apply to waivers of the right to direct appeal, it is consistent with Supreme Court precedent to enforce a waiver of § 2255 rights expressly contained in a plea agreement when the collateral attack does not challenge counsel’s representation in negotiating or entering the plea or the waiver. As noted above, “[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” Broce, 488 U.S. at 569, 109 S.Ct. 757. Based on this reasoning, we hold that a plea agreement waiver of post-conviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver. Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable.
IV.
We now examine Defendant’s claims of ineffectiveness to determine into what category they may fall: Do they attack the validity of the plea or the waiver or do they challenge counsel’s performance at sentencing?
A. Drug Convictions
Defendant argues that his counsel was ineffective at sentencing by failing to require the government to present proof of the illegal substance and to prove that the substance was D-methamphetamine rather than L-methamphetamine in light of our decision in Glover, 97 F.3d 1345, which placed that burden on the government even in cases of guilty pleas.
In Glover, two defendants filed § 2255 motions essentially claiming error because they were sentenced for D-methamphetamine without any proof or findings regarding the nature of the methamphetamine actually involved. They argued counsel was ineffective for failing to object at sentencing to the unsubstantiated character of the methamphetamine as D-methamphetamine. The court held that because the government bore the burden of proving the specific substance at sentencing, see id. at 1347, counsel’s failure to raise this error was prejudicial under Strickland with respect to at least one of the defendants. The court therefore re
Our decision in Glover does not apply to this case primarily because Glover did not involve a plea agreement waiver of § 2255 rights. In addition, the nature of the arguments made by the defendants in Glover and made by Defendant in this case shows that Defendant’s claim of ineffective representation does not fall into the protected category that survives a waiver. Like the defendants’ argument in Glover, Defendant’s argument here challenges only the sentencing; he does not attack the validity of the plea or the waiver just as the defendants in Glover were not attacking the validity of their pleas.
The characterization of a challenge to the validity of a plea is certainly subject to different interpretations and may be quite broad. Some courts have determined that a defendant challenges the validity of the plea or the waiver by raising a claim that counsel misinformed her with respect to an aspect of sentencing. See e.g., Balbuena, 104 F.Supp.2d at 218-20 (construing defendant’s ineffectiveness claim that counsel erroneously advised her to refrain from stipulating to deportation as a challenge to the validity of her plea); Carrasco, 1999 WL 286083, at *3 (construing argument that counsel failed to advise defendant of departures during plea negotiation as argument that defendant did not knowingly waive § 2255 rights due to ineffective assistance of counsel). Accordingly, the question of the nature of ineffective assistance claims must be addressed on a case-by-case basis to determine whether they attack the validity of the plea or the waiver.
In this case, we conclude that Defendant’s claims may not reasonably be characterized as an attack on the validity of the plea. Defendant was informed at the plea hearing about the likely parameters of his sentence. The government indicated that his maximum sentence on each drug charge would be between ten years and life imprisonment. See R., Supp. Vol. I at 7, 9, 11. Defendant acknowledged that he fully understood the punishment that could be imposed. See id. at 9. He does not allege that, had counsel required the sufficient proof at sentencing, his plea would have been different. Nothing in the record indicates that his plea was involuntarily or unknowingly entered because of this sentencing issue. Cf. Libretti, 38 F.3d at 529 (determining that defendant’s plea was voluntary in part because nothing in record showed he would have made a different plea if he had been questioned about forfeitability of assets). Because Defendant’s § 2255 ineffective assistance claim regarding sentencing for his drug convictions does not relate to the validity of the plea or the waiver, we hold that he has waived the right to bring that challenge so long as he knowingly and voluntarily entered the plea and made the waiver.
B. The Plea and the Waiver
The plea agreement provides that Defendant knowingly and “expressly waives the right to appeal [his] sentence on any ground, except to challenge an upward departure from the applicable guideline range as determined by the Court.” R., Vol. 1, Doc. 4, Plea Agreement at 9. It also states that “Defendant specifically waives any appeal rights conferred by 18 USC § 3742, any post-conviction proceedings, and any habeas corpus proceedings,” id., and that Defendant “agrees not to contest such sentence in any post conviction proceeding.” Id. at 10. Finally, the agreement provides that Defendant “fully understand^] [the plea agreement] and ... voluntarily agreefs] to it without reservation.” Id. at 12.
In determining whether to accept Defendant’s plea, the district court specifically addressed the waiver issue in a colloquy with Defendant. The court described the terms of the waiver of appellate and post-conviction relief, repeatedly asking Defendant if he understood the ramifications of waiving his right to appeal or to file any
The record is full of similar representations with respect to the plea agreement as well. The court followed the requirements of Fed.R.Crim.P. 11, explaining and determining if Defendant understood the nature of the charges; the possible penalties including supervised release and the court’s role in sentencing and applying the sentencing guidelines; Defendant’s right to plead not guilty and to be tried by a jury; the possibility that his answers to the court’s questions could be used against him in a prosecution for perjury; and, as reviewed above, the terms and implications of the waiver provision. To all these inquiries, Defendant responded that he understood his rights and what he was giving up by way of his plea. When asked whether his guilty plea was “made voluntarily and completely of [his] own free choice,” Defendant answered, “Yes,” R., Supp. Vol. I at 13, and he testified that his plea was not obtained by any use of force or compulsion. The court also questioned whether Defendant understood the terms and conditions of the plea agreement, and Defendant stated that he did. In sum, the court determined that Defendant was mentally competent to understand the consequences of his plea and that the plea was “made voluntarily and with [an] understanding of the nature of the charges ... [and] the consequences of [the] plea.” See id. at 34.
In light of these statements by the court and Mr. Cockerham, we hold that Defendant entered the plea and made the waiver knowingly and voluntarily. We therefore affirm the district court’s decision enforcing the waiver and dismissing the § 2255 motion as it relates to the sentencing for Defendant’s drug convictions.
C. Section 924(c) Conviction
Finally, we address the second component of Defendant’s ineffective assistance claim. In his § 2255 motion, Defendant contended that the evidence was insufficient under Bailey, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472, to sustain a § 924(c) conviction for using or carrying a firearm during and in relation to a drug trafficking crime. On appeal, Defendant urges us to read the waiver provision as a restriction only on the right to appeal or collaterally attack his sentence. In other words, he contends that the plea agreement waiver did not encompass his right to appeal or collaterally attack his conviction.
Having reviewed the record, we do not view the language in the plea agreement in the same manner as does Defendant. The waiver provision includes broad language waiving “any appeal rights conferred by 18 USC § 3742, any post-conviction proceedings, and any habeas corpus proceedings.” R., Vol. 1, Doc. 4, Plea Agreement at 9 (emphasis added). This language, in combination with the colloquy at the plea hearing between the court and Defendant, demonstrates that the waiver provision applied to Defendant’s right to appeal and collaterally attack his sentence and his conviction. See id., Supp. Vol. I at 17-20; United States v. Smith, 160 F.3d 117, 120-21 (2d Cir.1998) (determining that Rule 11
Although we disagree with Defendant’s argument concerning the scope of the waiver, we nonetheless determine that his underlying argument concerning the § 924(c) conviction can reasonably be construed as an attack on the validity of the plea agreement. In other words, we view Defendant’s assertion that the evidence was insufficient under Bailey as an argument that his plea was unintelligent because his counsel failed to properly inform him about Bailey’s impact on the nature of the charge against him. See Bousley v. United States, 523 U.S. 614, 618-19, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (holding that defendant’s § 2255 claim that his guilty plea was not knowing and intelligent based on Bailey may be entitled to hearing on the merits if he overcomes his procedural default).
The Supreme Court decided Bailey after the plea hearing in this case but before the court sentenced Defendant.
V.
In sum, we hold that a defendant may expressly waive, in a plea agreement, the
AFFIRMED in part and REVERSED and REMANDED in part.
. We issued a certificate of appealability based on representations made in Defendant's pro se brief. We also appointed counsel to represent Defendant and ordered both parties to brief the waiver issue.
. At least two federal district courts have determined that defendants may raise any ineffective assistance of counsel claims despite
. Our review of Fourth Circuit case law concerning waivers of § 2255 rights reveals that the plea agreements within that circuit frequently contain waivers that explicitly reserve the right to raise ineffective assistance of counsel claims. See, e.g., United States v. Brown, 181 F.3d 92, (4th Cir.'l999) (Table); United States v. Garrison, 81 F.3d 152, (4th Cir.1996) (Table). This wise practice may assist parties in avoiding the very thorny issue with which we are dealing today.
. Our holding limiting the scope of ineffective assistance claims that may be brought under § 2255 despite a waiver of collateral rights is, of course, restricted to waivers expressly made in plea agreements.
. Effective November 1, 1995, the Guidelines were amended to remove the distinction between D— and L-methamphetamine. See United States Sentencing Guidelines Manual App. C, Amendment 518 at 343-44.
. On the basis of this colloquy, Defendant's argument in his pro se brief that the waiver was not knowingly made because he was not specifically informed about the postconviction relief waiver has no merit.
. It is not clear when the court ultimately accepted tire plea. The court stated at one point during the plea hearing that it would "reserve[ ] its decision about acceptance of the plea agreement until a sentencing report ha[d] been made,” R., Supp. Vol. I at 21, but then stated at the end of the hearing that it accepted the plea. See id. at 34.
. According to the plea colloquy, it appears that the factual basis for the § 924(c) charge was carrying a firearm. See R., Supp. Vol. I at 32. Though Bailey did not attempt to define "carry,” its definition of "use” indicates that carrying is more than mere .possession and "inert presence.” Bailey, 516 U.S. at 149, 116 S.Ct. 501; see also Muscarello v. United States, 524 U.S. 125, 127, 134, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (defining "carry” as requiring some personal agency, knowing possession, and conveyance of the firearm). From the record before us, it appears that an informant observed the shotgun laying on the Door of Defendant's residence during a drug transaction. If the plea was based on use of a firearm, Bailey provides that displaying a gun during a drug transaction satisfies the active employment standard. See Bailey, 516 U.S. at 146, 116 S.Ct. 501; cf. United States v. Gibbs, 182 F.3d 408, 427 (6th Cir.) (reversing § 924(c) convictions because there was no evidence that gun on display in apartment was on display during a drug transaction), cert, denied, 528 U.S. 1051, 120 S.Ct. 592, 145 L.Ed.2d 492 (1999).
.With respect to the procedural bar, we direct the district court to examine whether Defendant's claim of ineffective assistance of counsel should be reviewed under the "cause” and "prejudice” standard or the "actual innocence” standard in light of Bousley, 523 U.S. at 622-23, 118 S.Ct. 1604.
Concurrence in Part
concurring and dissenting:
I concur in part and dissent in part. I agree with much of the majority decision, including (1) the conclusion in Part II that a waiver of 28 U.S.C. § 2255 rights in a plea agreement is generally enforceable, (2) the conclusion in Part III that a claim of ineffective assistance of counsel in connection with the negotiation of a plea agreement cannot be barred by a waiver of appeal or collateral attack rights in the agreement itself, and (3) the conclusion in Part IV.C. that the waiver-of-appeal-rights provision of the plea agreement entered into by the defendant does not preclude him from asserting that his counsel was ineffective for failing to inform him of the impact of Bailey prior to entry of the plea agreement.
In United States v. Attar, 38 F.3d 727 (4th Cir.1994), the court rejected the notion that
a defendant can fairly be said to have waived his right to appeal his sentence on the ground that the proceedings following entry of the guilty plea were conducted in violation of his Sixth Amendment right to counsel, for a defendant’s agreement to waive appellate review of his sentence is implicitly conditioned on the assumption that the proceedings following entry of the plea will be conducted in accordance with constitutional limitations.
Id. at 732. I agree with this holding.
To conclude otherwise would mean that, by generally waiving his right to appeal or file a collateral attack, a criminal defendant also effectively waives his Sixth Amendment right to effective assistance of counsel during the post-plea proceedings. Although the right to effective assistance of counsel can be waived, I am persuaded that it requires a more explicit waiver provision than the one found in the plea agreement here. See, e.g., United States v. Williamson, 806 F.2d 216, 219 (10th Cir.1986) (discussing requirements for valid waiver of Sixth Amendment right to effective assistance of counsel).
Having said this, I acknowledge that the Seventh Circuit has refused’, based upon general waiver-of-appeal-rights provisions in plea agreements, to address ineffective assistance claims which alleged deficient performance of counsel during sentencing {e.g., counsel’s failure to raise various sentencing issues that would have resulted in a lower sentence). See United States v. Joiner, 183 F.3d 635, 644-45 (7th Cir. 1999). In doing so, the Seventh Circuit has characterized such claims as little more than “garden-variety attacks” on the underlying sentence, guised as claims of ineffective assistance. While I acknowledge the Seventh Circuit’s interest in upholding the underlying plea agreements, I question whether this approach is the proper one. In Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court emphasized there is a legal distinction between a habeas petitioner’s Sixth Amendment ineffective assistance of counsel claim and the underlying claim that counsel allegedly failed to assert at trial. In particular, the Court noted that while the defaulted claim “is one element of proof of [the] Sixth Amendment claim, the two claims have separate identities.” Id. at 375, 106 S.Ct. 2574. Thus, for purposes of determining the applicability of the waiver-of-rights provision contained in defendant’s plea agreement, a distinction must be made between the ineffective assistance claims and the underlying claims that counsel allegedly failed to make. In other words, it seems to me improper to characterize the ineffective assistance claims as “garden-variety” attacks on the sentence itself.
For these reasons, I would reverse and remand with directions to the district court to consider on the merits defendant’s claims that his counsel was ineffective for failing (1) to move to withdraw the plea agreement based upon Bailey, and (2) to challenge the trial court’s finding, at the time of sentencing, that the crimes at issue involved d-methamphetamine.
. The precise nature of defendant's Bailey— based claim hinges on whether Bailey was issued before or after entry of the plea agreement. If Bailey was issued before entry of the plea agreement, there are two aspects to the claim: (1) that counsel should have advised defendant of Bailey prior to entry of the plea, and (2) that counsel should have, in any event, moved to withdraw the plea. If Bailey was issued after entry of the plea, the claim is limited to the assertion that counsel should have moved to withdraw the plea.
. In my view, the majority reads Attar too narrowly. For example, the majority attempts to distinguish Attar, in part, on the grounds that the plea agreement at issue there specifically reserved the “right to appeal based upon grounds of ineffective assistance of counsel ... not known to the Defendants at the time of the[ir] ... guilty plea.” 38 F.3d at 729. As the majority ultimately concedes, however, the Fourth Circuit did not rely on this provision in reaching its decision. A review of the facts of Attar indicates that this provision was inapplicable since the defendants were not seeking to assert on appeal that they received ineffective assistance of counsel after they entered into their plea agreements, but rather that they were denied the right to counsel altogether after they entered into their plea agreements.
