U.S. v. Wheeler (10th Cir. 2007)

Federal Circuits, 10th Cir. (October 16, 2007)

Docket number: 07-4135

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Permanent Link: http://vlex.com/vid/u-s-v-wheeler-38304352
Id. vLex: VLEX-38304352

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U.S. Court of Appeals for the 10th Cir. - United States of America, Plaintiff-Appellee, v. Tommy Don Cockerham, Defendant-Appellant., 237 F.3d 1179 (10th Cir. 2001)

U.S. Court of Appeals for the 10th Cir. - United States of America, Plaintiff-Appellee, v. Jeffery Porter, Also Known as Jeff Borter, Also Known as Jeff Fitzgerald Porter, Also Known as Damien, Defendant-Appellant., 405 F.3d 1136 (10th Cir. 2005)

U.S. Court of Appeals for the 10th Cir. - United States of America, Plaintiff-Appellee, v. Marcus G. Hahn, Defendant-Appellant. National Association of Criminal Defense Lawyers, Amicus-Curiae., 359 F.3d 1315 (10th Cir. 2004)

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Text:

FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES CO URT O F APPEALS

October 16, 2007

Elisabeth A. Shumaker

FO R TH E TENTH CIRCUIT Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-A ppellee,

v. No. 07-4135

(D.C. No. 2:06-CR -652-TS)

GERALD W HEELER, JR., (D. Utah)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before H E N RY, T YM KOV IC H, and GORSUCH, Circuit Judges.

This matter is before the court on the government's motion to enforce the

appeal waiver contained in defendant's plea agreement. The motion is filed

pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc).

In response, defendant concedes that the government's motion is well taken, and

that the appeal should be dismissed, because the appeal falls within the scope of

the appeal waiver, he knowingly and voluntarily waived his appellate rights, and

This panel has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);

10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral

argument. This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and

10th Cir. R. 32.1.

enforcing the waiver w ould not result in a miscarriage of justice. See id. at 1325.

Defendant requests only that his right to assert an ineffective-assistance-ofcounsel claim in a 28U.S.C. § 2255 motion be preserved. Defendant is correct that such a claim must ordinarily be raised in a collateral § 2255 proceeding. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (holding that this rule applies even where a defendant seeks to invalidate an appellate waiver based on ineffective assistance of counsel); see also United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001) ("[A] claim of ineffective assistance of counsel in connection with the negotiation of a [plea] agreement cannot be barred by the agreement itself.") (quotation omitted).

Accordingly, the government's motion is G RANTED, and the appeal is DISM ISSED, without prejudice to defendant's right to raise an ineffective-assistance-of-counsel claim in a collateral proceeding. The mandate shall issue forthwith.

ENTERED FOR THE COURT PER CURIAM