UNITED STATES of America, Plaintiff-Appellee, v. Daniel Leslie MOONEYHAM, Defendant-Appellant.
No. 14-6058.
United States Court of Appeals, Tenth Circuit.
Sept. 12, 2014.
657 F.3d 657
The judgment of the district court is affirmed. Mr. Springer‘s motion to proceed on appeal in forma pauperis is denied. He is reminded that he must pay the filing fee in full.
Brandon T. Hale, Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.
Daniel Leslie Mooneyham, Seagoville, TX, pro se.
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
ORDER
ROBERT E. BACHARACH, Circuit Judge.
Mr. Daniel Mooneyham pleaded guilty to one count of receiving child pornography (
I. Standard for a Certificate of Appealability
A certificate of appealability is necessary for Mr. Mooneyham to appеal. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003);
II. The Issues
On appeal, Mr. Mooneyham contends that his counsel was ineffective in three ways:
- in negotiating and explaining the plea,1
- in providing representation at sentencing, and
- in failing to file an appeal.
Appellant Br. at 2-8. The district court ruled that the waiver of a collateral challenge barred consideration of the second and third contentions and rejected the first contention on the merits. R. vol. 1, at 292, 297.
III. Ineffectiveness of Counsel in Negotiating and Explaining the Plea
Mr. Mooneyham alleges that his counsel was ineffective in negotiating and explaining the plea by:
- telling Mr. Mooneyham to plead guilty because he would receive a five-year sentence,
- failing to tell him that supervised release conditions could be imposed,
- failing to meet and communicate,
- waiting until the day before the plea hearing to present the proposed agreement,
- failing to explain all the terms of the agreement, and
- spending less than an hour with Mr. Mooneyham prior to the plea.
Id. at 293. Based on these allegations, Mr. Mooneyham claims that his counsel was ineffective in negotiating and explaining the plea. Appellant Br. at 4. We disagree.
A. Ineffective Assistance of Counsel Standard
We apply the two-pronged test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under Strickland, Mr. Mooneyham must show: (1) counsel‘s deficiency, аnd (2) prejudice. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Because we find it “easier to dispose of [Mr. Mooneyham‘s] ineffectiveness claim” on the prejudice prong, we need not analyze whether counsel was deficient. Id. at 697, 104 S.Ct. 2052.
B. Prejudice
The рrejudice prong requires Mr. Mooneyham to demonstrate a “reasonable probability that, but for the counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. A “reasоnable probability is a probability sufficient to undermine confidence in the
Mr. Mooneyham assеrted in the district court that he would have rejected the plea offer “but for counsel‘s error.” R. vol. 1, at 267. This assertion is inadequate under the circumstances. See Heard, 728 F.3d at 1184 (holding that a “‘mere allegation thаt [the petitioner] would have insisted on trial but for his counsel‘s errors ... is ultimately insufficient’ to justify relief) (quoting Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir.2001) (alteration in original)). In addition, Mr. Mooneyham had to identify facts indicating that “a decision to reject thе plea bargain would have been rational under the circumstances.” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)) (emphasis added).
Mr. Mooneyham cannot make that showing. He was charged not only with receiving child pornography, but also with enticing a child to engage in sexually explicit conduct under
IV. Ineffective Assistance at the Sentencing and in the Failure to File an Appeal
Mr. Mooneyham argues that his counsel was ineffective at the sentencing and in failing to file a notice of appeal as directed. Appellant Br. at 5-8. These claims are precluded by the waiver of collateral challenges.
A. The Waiver
In the plea agreement, Mr. Mooneyham waived his rights to “[a]ppeal or collaterally challenge his guilty plea, sentence ... imposed, аnd any other aspect of his conviction” as long as the sentence fell within or below the advisory sentencing guidelines determined by the court to apply. R. vol. 1, at 25. The waiver is enforceable if: (1) the ineffective assistance claims fall within the scope of the waiver, (2) the defendant knowingly and voluntarily waived his right to collateral review, and (3) enforcement of the waiver would not result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc); United States v. Parker, 720 F.3d 781, 787 (10th Cir.2013).
B. The Scope of the Waiver
The waiver covers the ineffective-assistance claims regarding the sentencing and the failure to file an appeal. See United States v. Cockerham, 237 F.3d 1179, 1188 (10th Cir.2001) (because thе defendant‘s claim of ineffective assistance at sentencing did not relate to the validity of the plea or the waiver, the right to challenge the sentence was waived); United States v. Viera, 674 F.3d 1214, 1217-18 (10th Cir.2012) (holding that a failure to file an appeal is within the scope of the waiver because the failure “does not undermine the validity of the plea or waiver“). The sentence fell below the guidelinе range, and Mr. Mooneyham‘s challenges involving the sentence and failure to appeal cannot reasonably be construed as challenges to the validity of the plea or the waiver of rights to challenge the plea. See Viera, 674 F.3d at 1218; Cockerham, 237 F.3d at 1188. We hold that Mr. Mooneyham‘s challenges fell within the scope of the waiver.
C. “Knowing and Voluntary”
Second, Mr. Mooneyham knowingly and voluntarily waived his right to collateral review. In reaching this conclusion, we focus on: (1) “whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily[,]” and (2) the presence of “an adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. The plea agreement states that the waiver was knowing and voluntary, and Mr. Mooneyham acknowledged that he had discussed the terms with his attorney and understood them. R. vol. 1, at 25, 27; R. vol. 3, at 17. Because Mr. Mooneyham presents no evidence challenging the validity of the waiver, we assume that it was knowing and voluntary. See Hahn, 359 F.3d at 1329.
D. “Miscarriage of Justice”
Enforcing Mr. Mooneyham‘s сollateral attack waiver will not result in a miscarriage of justice.
Enforcement of a waiver of collateral challenges results in a miscarriage of justice only: “(1) where the district court rеlied on an impermissible factor such as race, (2) where ineffective assistance of
Mr. Mooneyham alleges ineffective assistance of counsel in connection with the negotiation of the plea agreement. But we have concluded that defense counsel was not deficient in negotiating the plea agreement. Because Mr. Mooneyham has not otherwise alleged a basis for a miscarriage of justice, we conclude that the waiver bars consideration of the ineffective-assistance claims regarding the sentencing and failure to file an appeal.
V. Leave to Proceed in Forma Pauperis
Mr. Mooneyham cannot afford the filing fee; thus, we grant leavе to proceed in forma pauperis.
VI. Disposition
We deny the request for a certificate of appealability and grant leave to proceed in forma pauperis.