United States v. Wheeler , 251 F. App'x 522 ( 2007 )

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 This order and judgment is not binding precedent, except under the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-of-
counsel claim in a 28 U.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
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