United States v. James, 10th Cir. (2017)
United States v. James, 10th Cir. (2017)
United States v. James, 10th Cir. (2017)
Plaintiff - Appellee,
v. No. 17-2048
(D.C. No. 1:07-CR-02251-MV-1)
EVELYNE JAMES, (D. N.M.)
Defendant - Appellant.
_________________________________
pleading guilty to voluntary manslaughter of a child, appeals from the district courts
denial of her request to withdraw her plea. The government has filed a motion to
enforce the appeal waiver included in her plea agreement. We grant the motion and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Some procedural history will put the motion in context. Ms. James entered her
plea, pursuant to the agreement now invoked by the government, in May 2012. In
exchange for her plea, the government dismissed a first-degree murder charge and
agreement states that Ms. James knowingly waives the right to appeal her conviction
and any sentence in this case, except to the extent, if any, that the Court may impose
a sentence that differs from that agreed to by the parties under Federal Rule of
Criminal Procedure 11(c)(1)(C). Mot. to Enforce, Ex. 1 at 6. She also waived her
right to collaterally attack any sentence imposed in [the] case except on the grounds
Three weeks later, but before sentencing, Ms. James sent a letter to the district
court seeking to withdraw her plea and to obtain substitute counsel. The court denied
the requests, sentenced her to a 25-year term, and entered judgment. No appeal
followed.
Ms. James later filed a motion for relief under 28 U.S.C. 2255 arguing,
among other things, that her counsel had rendered ineffective assistance by failing to
take an appeal from the denial of her request to withdraw her plea. The government
opposed this claim in part on the basis that her appeal waiver undercut any prejudice
from this omission. It also eventually filed a motion to enforce the waiver. Acting
on the magistrate judges recommendation, the district court granted relief on the
ineffective-assistance claim. The court vacated and reinstated its prior judgment to
give Ms. James the opportunity to perfect the appeal counsel had forgone, and also
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denied the governments motion to enforce the appeal waiver as premature. When
Ms. James did file the appeal, the government filed with this court the instant motion
The governments motion argues that the waiver applies to this appeal, that it
was knowing and voluntary, and that there are no circumstances evident on the record
to suggest that enforcement of the waiver would give rise to a miscarriage of justice.
See generally United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
appeal waiver). Ms. James disputes all three points and also contends that the
government has forfeited the right to enforce the appeal waiver. We begin with the
last point.
Ms. James argues that the government forfeited its right to enforce the appeal
waiver by failing to assert the waiver in timely fashion in response to her 2255
motion. But that motion and this appeal are two distinct proceedings implicating
different waiver provisions in the plea agreement. And, as noted above, the waiver
provision limiting the right to seek collateral review specifically excepts claims of
ineffective assistance of counsel. Thus, the appeal waiver now at issue was not
previously available (as the district court recognized in denying the governments
prior motion to enforce as premature), and the collateral-review waiver that was
3
Nor can the government be deemed to have forfeited the appeal waiver through
delay in invoking it in opposition to Ms. James 2255 motion, on the theory that the
waiver would have conclusively undercut her claim seeking a delayed direct appeal
based on counsels failure to perfect a timely one. Because appeal waivers are not
always enforceable (and can be forfeited even when otherwise applicable), we have
held that such delayed-appeal claims are not defeated by the existence of waivers that
the government could seek to enforce once the appeal is brought. See United States
v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005); see also United States v.
Parker, 720 F.3d 781, 786 & n.6 (10th Cir. 2013). In sum, the appropriate time for
Ms. James argues that this appeal falls outside the waiver because she is not
appealing her sentence, rather, she is appealing the denial of her motion to withdraw
her plea. Resp. to Mot. to Enforce (Resp.) at 6. But her waiver also covered the
right to appeal her conviction, and this court explained some time ago that an
conviction on appeal and thus falls within the plain language of an appeal waiver
provision. United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (per curiam)
(brackets omitted) (quoting United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir.
2001)). Ms. James contends the appeal waiver at issue in Elliott (she does not
mention Leon) was broader in some respects than her waiver, but the material point is
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that she waived the right to appeal her conviction and, under our case law, that is
Ms. James also argues that her plea, and by extension her appeal waiver, was
not knowing and voluntary. See generally United States v. Rollings, 751 F.3d 1183,
1186 (10th Cir. 2014) ([I]n determining whether an appellate waiver is knowing and
voluntary [and thus enforceable] under Hahn, we may consider whether the entire
plea agreement, including the plea, was entered knowingly and voluntarily.). The
defendant bears the burden of establishing that an appeal waiver was not knowing
and voluntary. Id. at 1187. In resolving this issue, we consider whether the
language of the plea agreement states that the defendant entered the agreement
knowingly and voluntarily and whether there was an adequate Federal Rule of
We have reviewed these sources and agree with the government that they fully
support the knowing and voluntary nature of Ms. James plea and appeal waiver.
See United States v. Tanner, 721 F.3d 1231, 1234 (10th Cir. 2013) (per
Ms. James objects that her short, mostly yes-or-no type responses during the colloquy
did not reflect a serious interactive dialogue with the Court. Resp. at 11. But
guilty-plea colloquy to conclude that the defendant pleaded guilty knowingly and
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voluntarily, those answers must be lengthy and all-encompassing; a straightforward
and simple Yes, your Honor is sufficient. United States v. Torrellas, 455 F.3d
96, 103 (2d Cir. 2006) (quoting United States v. Gardner, 417 F.3d 541, 544 (6th Cir.
2005)). And the fact that the magistrate judge at one point said to Ms. James I want
you to breathe for me because I dont want to see you faint . . . and if you need to sit
down, you let me know, Resp. at 12 (brackets and internal quotation marks omitted),
does not, as Ms. James suggests, demonstrate that her understanding of the colloquy
Ms. James further argues that she acted quickly in seeking to withdraw her
plea and that her alacrity supports her allegation that, notwithstanding her contrary
representations on the record, she had not understood the proceedings or the terms of
her agreement. In United States v. Vidakovich, 911 F.2d 435, 439 (10th Cir. 1990),
this court stated that a swift change of heart, such as one that takes place within a
day or so of a plea, can lend support to a claim that the plea had not been knowing
and voluntary. But Ms. James took over three weeks to act. And her testimony at the
hearing on her motion to withdraw her plea indicates she acted out of second
thoughts about the sentencing range specified in the agreement and on the prompting
of a fellow inmate who told her she should have been offered more plea deals.
See Mot. to Enforce, Ex. 3 at 14-15. Such after-the-fact reassessments do not show
Ms. James contends her letter requesting to withdraw her plea evidences her
lack of understanding of the plea and the pressure imposed by counsel and her own
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circumstances to agree to it. As for lack of understanding, Ms. James points to a
statement in the letter that counsel confused [her] by saying he changed [her] plea
counsel on this point at the hearing prompted by the letter. Counsel explained that
sentencing was of primary importance to both sides, with Ms. James intent on
avoiding a life term. Plea negotiations initially involved offers and counter-offers
noted above (between the 20-year offer counsel opened with and the governments
proceeded to specification of an offense that could fit both the sentence and the facts
of the case. When problems with using involuntary manslaughter (initially proposed
for this purpose) were fleshed out, the parties agreed to use voluntary manslaughter
instead. After counsel recounted this negotiation process at the hearing, Ms. James
admitted his testimony did ring a bell. Mot. to Enforce, Ex. 3 at 13. These events
may suggest that Ms. James had forgotten, or not fully appreciated, some of the legal
nuances involved in the negotiation process leading to the plea offer she accepted,
but they do not show she did not knowingly enter the plea for the straightforward
1
For the same reason, the fact that the court acknowledged at the hearing that
confusion on Ms. James part with respect to the rationale for selecting voluntary
(continued)
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Ms. James letter also stated that counsel had told her there is and will be
only one plea agreement offered so [she] must sign [what] has been offered. Resp.,
Ex. A at 1. She cites no authority for the tacit legal premise here that being told
(correctly or not) that a plea offer is the only one forthcoming makes the defendants
free acceptance of that offerfor the benefits it undeniably bestows in contrast to the
any event, at the hearing counsel denied making such a statement, explaining it
would have been plainly inconsistent with the parties open, back-and-forth plea
negotiations that involved multiple offers from the government. When given the
it is the defendant who bears the burden of demonstrating [her] waiver was not
knowing and voluntary. United States v. White, 584 F.3d 935, 948 (10th Cir.
2009) (internal quotation marks omitted). Under the circumstances, Ms. James has
not carried that burden on the basis of her allegation that she was told the plea
agreement she accepted was the one and only offer that would be made. Her
associated claim that her plea was involuntary because she felt rushed into it is
inconsistent with her statements on the record at the plea hearing affirming that she
manslaughter would not be surprising, see Resp. at 12-13, does not imply that her
acceptance of the plea was unknowing or involuntary.
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had had sufficient time to consult with counsel and that no one was pressuring her to
plead guilty.2
Finally, Ms. James insists an allegation in her 2255 motion (filed two years
after her plea) further evidences her overall lack of understanding. Specifically,
where the motion form asks why a challenge to her sentence had not previously been
raised on direct appeal, she stated she did not understand I could appeal. Resp. at
13 (brackets and internal quotation marks omitted). Leaving aside the conclusory,
collateral, and chronologically remote character of this statement, it does not show
she misunderstood her plea agreementin particular, the appeal waiver included
would, rather, be of more concern if she indicated that the agreement had not
C. Miscarriage of Justice
appeal waiver in the plea agreement, because it has waived its right to do so. The
2
In addition, her suggestion that memory issues could have contributed to
her confusion in some unspecified way, Resp. at 13, is far too vague and conclusory
to undermine the validity of her plea.
9
Ms. James contends that enforcing the waiver with respect to [her] motion to
withdraw [her] plea would amount to forcing upon her a waiver of her right to a
critical part of her sentencing without the requisite explicit knowing and voluntary
relinquishment of that right. Resp. at 15. If she means, literally, that the waiver
was improperly applied by the district court to the motion to withdraw itself, she is
incorrect. The district court did not refuse to consider the motion on the basis that
such relief had been waived but, rather, denied it on the merits because Ms. James
had failed to demonstrate any basis for withdrawal of [her] plea agreement. Mot.
to Enforce, Ex. 3 at 27 (emphasis added). And to the extent she is simply reasserting
her argument that her plea was not knowing and voluntary, we have already held her
to allow for the plea to be withdrawn is likewise unlawful because it would uphold a
3
Her associated statement that to determine if a waiver is otherwise unlawful
the focus must be on the rights the waiver purportedly relinquishes, Resp. at 15
(citing United States v. Smith, 500 F.3d 1206, 1212-13 (10th Cir. 2007)), suggests
she may intend to bolster her objection to the appeal waiver by pointing to the fact
that it will result in her losing appellate review of the denial of her motion to
withdraw her plea. If so, her argument stands Smith on its head. In that case we
clarified that the inquiry into the lawfulness of a waiver must focus on the right
relinquished, i.e., the right to appeal, and not the result of the proceeding, i.e., the
alleged error for which appellate review is sought. Smith, 500 F.3d at 1213. In any
event, Ms. James has not shown that the discretionary denial of her motion to
withdraw her plea remotely approached a miscarriage of justice.
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error goes to the validity of the waiver. Resp. at 15. She points to nothing in the
record for her oblique claim that the district court somehow misunderstood its
discretion to allow the withdrawal of her plea. As for her conclusory reference to the
courts unlawful acceptance of the plea agreement, we have, again, already held that
Ms. James has failed to show that her plea was not knowing and voluntary.
III. CONCLUSION
Ms. James has failed to satisfy her burden of demonstrating that the appeal
waiver in her plea agreement should not be enforced. Accordingly, the governments
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