United States District Court, Eastern District of Pennsylvania
Pursuant to a plea agreement containing an appellate waiver provision, the defendant, Deborah Pearl Eleazer, pleaded guilty to conspiracy to distribute oxycodone. One month after she was sentenced to a one-year prison term, Eleazer filed a motion under 28 U.S.C. § 2255. She contends that her attorney was ineffective because he persuaded her to plead guilty despite her innocence and failed to conduct a reasonable pretrial investigation. She also argues that her sentence was “based on inaccurate information and false assumptions” that her attorney failed to correct. She boldly asserts that “the sentence would have been probation or something lower than one year in jail” had the court been aware of her addiction. In essence, her motion seeks to withdraw her guilty plea.
The government seeks dismissal of the motion because the defendant waived her right to collaterally attack her sentence under 28 U.S.C. § 2255. In the alternative, the government argues that her claims lack merit. It contends that any confusion regarding the possible penalty or the factual basis for the guilty plea was clarified during the guilty plea colloquy. It also argues that counsel did make arguments at the defendant’s sentencing that she claims were not made. It emphatically protests her claim of innocence.
Having presided over the defendant’s guilty plea colloquy and sentencing hearing, and after carefully reviewing her motion and holding an evidentiary hearing, I conclude that she knowingly and voluntarily waived her right to file a direct appeal, but not her right to collaterally attack her sentence. Nevertheless, considering Eleazer’s § 2255 motion on the merits, I find her claims are meritless. Therefore, I shall deny the motion.
Eleazer was charged with conspiracy to distribute oxycodone in violation of 21 U.S.C. § 146. On December 20, 2012, she pleaded guilty. Her plea agreement contained a waiver of appellate rights. She reserved the right to appeal only if the government appealed, her sentence exceeded the statutory maximum, her sentence resulted from an erroneous upward departure from the sentencing guideline range, or her sentence was unreasonably above the applicable guideline range. The waiver included the right to pursue a collateral attack via a motion to vacate, set aside or modify her sentence pursuant to 28 U.S.C. § 2255.
On March 20, 2013, Eleazer was sentenced to twelve months imprisonment to be followed by three years of supervised release. Five days after she was sentenced, notwithstanding the appellate waiver in her plea agreement, Eleazer filed a pro se notice of appeal to the Third Circuit Court of Appeals. In response, the government filed a motion to enforce the appellate waiver. While the appeal was pending, Eleazer filed her § 2255 motion in this court. On May 13, 2013, the Third Circuit granted Eleazer’s motion to withdraw her appeal.
An evidentiary hearing was held on May 1, 2013. Eleazer and her former attorney testified. Eleazer testified that her counsel suggested that she plead guilty even though she was not guilty of the charges. She asserted that she did not understand the guilty plea agreement, citing her having been in a “special class” in school. She also testified that she did not understand her counsel’s explanations of the indictment or the court’s questions at the change of plea hearing.
Eleazer’s former attorney testified that Eleazer never told him that she had been in special education classes or that she could not read. He noticed no “evidence of mental retardation.” He explained that he reviewed the plea agreement with Eleazer and she appeared to understand it. He vehemently denied telling her that she would receive a sentence of probation if she pleaded guilty. Although he said he recommended a guilty plea,  he denied pressuring her to plead guilty.
An appellate waiver is valid and enforceable if entered knowingly and voluntarily, and enforcing it will not work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citation omitted); United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). A waiver of appeal includes relinquishing “the opportunity to challenge the sentence imposed, regardless of the merits.” Khattak, 273 F.3d at 561.
As a threshold matter, the court must determine whether the issue raised by the defendant falls within the scope of the waiver. United States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013) (citation omitted). If it does, the court then considers whether the defendant knowingly and voluntarily agreed to the waiver. Id. If it finds that she did, the court asks whether enforcing the waiver will result in a miscarriage of justice. Id.
Eleazer challenges her guilty plea and sentence. She contends that her counsel was ineffective when he induced her to plead guilty to a crime she did not commit and did not explain her rights to her. Further, she asserts he advised her to plead guilty without having all the information available to him necessary to make an informed decision.
Eleazer also claims that her total offense level at sentencing was calculated on an incorrect loss amount. The plea agreement provided that “the defendant . . . waives all rights to appeal or collaterally attack the defendant’s . . . sentence . . . .”Therefore, this claim falls within the scope of the waiver.
At the next step in assessing the validity of the waiver, the court considers the language of the waiver and the guilty plea colloquy. United States v. Mabry, 536 F.3d 231, 238 (3d Cir. 2008). To ensure that an appellate waiver is knowing and voluntary, the defendant must be informed of the plea agreement provision waiving the right to appeal and to collaterally attack her sentence. Id. at 238-39. The court must be certain that the defendant understands what she is waiving. See Khattak, 273 F.3d at 560, 563.
At her guilty plea hearing, the defendant was advised of her appellate rights and her right to collaterally attack her conviction and sentence by a § 2255 motion. She acknowledged that she had those rights and was relinquishing them. She confirmed that her decision to plead guilty was voluntary and she was pleading guilty of her own free will. She also stated that she was satisfied with her attorney’s representation.At no time during the guilty plea colloquy did she exhibit any reluctance to go forward or a lack of understanding of what she was giving up by pleading guilty. In fact, she vehemently insisted that she did not want to go to trial.
Prior to accepting the plea, I found that Eleazer’s willingness to enter a guilty plea was voluntary and she had a full understanding of her right to go to trial. After she entered her guilty plea and before I adjudged her guilty, the defendant did not have any questions about what had transpired at the hearing.
The language of Eleazer’s agreement was clear and unambiguous as to her direct appeal rights. It clearly spelled out the limited circumstances, none of which are present here, where a direct appeal could be taken.
The language of the waiver provision relating to a collateral attack, on the other hand, is not clear. The waiver provision reads as follows:
In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.
At her change of plea hearing, Eleazer was advised regarding a § 2255 waiver as follows:
In addition to giving up your rights to take a direct appeal to the 3rd Circuit Court of Appeals[, ] you are also giving up your right to file a petition under 28 United States Code, Section 2255 to modify, set aside your conviction or anything to do with these proceedings. In other words, you have nowhere to go after you are sentenced. You got that?
Eleazer responded that she understood what that meant. Nonetheless, in her motion, Eleazer contends that she did not fully comprehend the meaning and consequences of pleading guilty generally and of waiving her appellate rights specifically. She contends that her counsel never explained the consequences of entering the plea with the waiver provision in it. Significantly, her former counsel testified that he did not recall going over the implications of a waiver of a right to file a motion under § 2255.
One cannot conclude confidently that Eleazer comprehended what she was giving up by agreeing to the waiver as it related to a § 2255 motion. She was given the typical advice about giving up her right to file a § 2255 motion. Although she appeared to understand the plea agreement generally and the direct appeal waiver, I do not find that she knew and fully understood what a § 2255 motion was and that she was giving up the right to file one. The warning is unclear and almost incomprehensible to anyone other than federal criminal law practitioners.
Considering the language of the § 2255 waiver in the plea agreement and the advice given at the plea colloquy together with Eleazer’s former counsel’s testimony that he did not recall advising her of her right to file a § 2255 motion and the consequences of giving it up, I find that she did not knowingly waive her right to file a motion pursuant to 28 U.S.C. § 2255.
It is not necessary to address the miscarriage of justice prong. In any event, whether enforcing the waiver will result in a miscarriage of justice is intertwined with Eleazer’s claims. Therefore, having concluded that Eleazer did not knowingly waive her right to file a § 2255 motion, I shall consider her claims on the merits.
Ineffectiveness of Counsel
Where the defendant claims that the waiver itself was the result of counsel’s ineffectiveness, the appellate waiver will not preclude the filing of a motion under 28 U.S.C. § 2255. United States v. White, 307 F.3d 336, 337 (5th Cir. 2002) (“[I]neffective assistance of counsel claims only survive a waiver of appeal if they directly relate to the voluntariness of the waiver. . . .”); United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993) (permitting a petitioner’s claim to continue where the motion to withdraw a guilty plea “incorporate[d] a claim that the waiver of appeal as well as the guilty plea itself was tainted by his counsel’s ineffectiveness . . . .”); United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (finding that ineffective representation claims survive waiver only where they directly challenge the validity of the plea). In other words, the only ineffectiveness claim that a defendant who has executed a waiver can bring is one that her attorney was ineffective in negotiating the plea agreement containing the waiver. All other ineffectiveness contentions are precluded by the waiver.
Ineffective assistance of counsel claims are evaluated under the familiar two-part standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Knowles v. Mirzayance, 556 U.S. 111, 124 (2009). First, the petitioner must demonstrate that her attorney’s performance was deficient, that is, “counsel's representation fell below an objective standard of reasonableness, ” considering all of the surrounding circumstances of the particular case and the facts viewed at the time of counsel’s conduct. Strickland, 466 U.S. at 687-89. Second, if there was deficient performance, the petitioner must show that it prejudiced her defense. Id. at 691-92. The prejudice prong requires a showing that as a result of the deficient representation, a reasonable probability exists that the results of the proceedings would have been different. Id. at 694. A reasonable probability is one that is “sufficient to undermine confidence in the ...