United States v. Hayes ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-60287
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY L HAYES,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
(1:96-CV-628)
March 19, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Anthony L. Hayes, a federal prisoner (#03375043), appeals the
district court’s denial of his 28 U.S.C. § 2555 motion to vacate,
correct, or set aside his sentence. The district court granted
Hayes a certificate of appealability (COA) on the issues whether
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
his guilty plea was invalid because it (1) resulted from
ineffective assistance of counsel, (2) deprived him of his right to
appeal, (3) was coerced by the government, and (4) violated his
right to a jury trial.
Hayes contends that his waiver of the right to appeal was not
knowing and voluntary and, therefore, that his guilty plea was
invalid. Because Hayes testified at the Rule 11 colloquy that he
had read and discussed the agreement with his attorney, understood
it to be the entire agreement with the government, and had
completed school through the eighth grade and could read and write,
the district court found that Hayes read and understood the
Memorandum of Understanding between the government and him. Hayes
has thus failed to show that the district court erred in concluding
that he knowingly and voluntarily waived his right to appeal. See
United States v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994)
(holding that “when the record of the Rule 11 hearing clearly
indicates that a defendant has read and understands his plea
agreement, and that he raised no question regarding a waiver-of-
appeal provision, the defendant will be held to the bargain to
which he agreed, regardless of whether the court specifically
admonished him concerning the waiver of appeal”).
Hayes also asserts that his guilty plea was invalid because it
was coerced by the prosecutor’s threats to prosecute Hayes’ sister
and girlfriend for their participation during and after Hayes’
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escape from the Harrison County Detention Center. Because Hayes
has failed to demonstrate that the prosecutor’s threats were made
in bad faith or that the prosecution lacked probable cause to
indict these women, he has failed to carry his heavy burden of
demonstrating that his guilty plea was coerced by these threats.
See United States v. Diaz, 733 F.2d 371, 375 (5th Cir. 1984);
United States v. Nuckols, 606 F.2d 566, 568 (5th Cir. 1979).
Hayes asserts that his Sixth Amendment right to effective
assistance of counsel was violated because his counsel advised and
allowed him to waive his right to appeal. He asserts that such a
waiver is unconstitutional, that counsel was not familiar with the
case law concerning such waivers, and that there are factors
showing that Hayes did not understand the provision. As part of
the plea agreement, Hayes agreed to waive his right to appeal his
sentence if the court accepted the government’s sentencing
recommendations, but he reserved the right to appeal sentencing
errors if the court did not. The court accepted the government’s
recommendations, and Hayes does not assert any sentencing errors.
The right to appeal a criminal conviction is a statutory, not a
constitutional, right that may be waived. See United States v.
Henderson, 72 F.3d 463, 465 (5th Cir. 1995); United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Even assuming that
counsel’s performance was deficient, Hayes has failed to
demonstrate that he was prejudiced by counsel’s allegedly deficient
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performance. See Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); DeVille v. Whitley, 21
F.3d 654, 659 (5th Cir. 1994); Diaz, 733 F.2d at 376.
The district court also granted a COA on the issue whether
Hayes’ guilty plea was invalid because it violated his
constitutional right to a jury trial. Pursuant to a guilty plea,
a defendant may waive the right to trial by jury, and such waivers
are valid if the plea agreement is entered into knowingly and
voluntarily. See Diaz v. Martin, 718 F.2d 1372, 1376 (5th Cir.
1983). The district court found that Hayes’ guilty plea was
entered into knowingly and voluntarily, and the record demonstrates
that the judge at the Rule 11 colloquy specifically admonished
Hayes concerning the waiver of right to jury trial. Hayes has thus
failed to show that he did not voluntarily and knowingly waived his
right to jury trial. See id.In addition to the claims on which the district court granted
a COA, Hayes argues on appeal that the factual basis was
insufficient to support his guilty plea, that the indictment was
defective, and that the government arrested him pursuant to
entrapment. We deny Hayes request for a COA as to these other
issues because Hayes has failed to make a substantial showing of
the violation of a constitutional right. See 28 U.S.C. § 2253(c).
Finally, Hayes asserts for the first time in his reply brief that
counsel was ineffective for advising and allowing him to plead
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guilty to crimes that never occurred. This issue was not raised in
the district court or in Hayes’ original appellate brief and
therefore will not be considered by this court. See United States
v. Anderson, 5 F.3d 795, 801 (5th Cir. 1993).
AFFIRMED.
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