United States v. Akers

FILED
United States Court of Appeals
Tenth Circuit

May 14, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 10-3003
v. (D.C. No. 2:04-CR-20089-KHV-JPO-1)
(D. Kan.)
MONTGOMERY CARL AKERS,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, TYMKOVICH, and GORSUCH, Circuit Judges.

Montgomery Carl Akers has filed an appeal from the district court’s

decision denying his motion to vacate his conviction pursuant to Fed. R. Crim. P.

33(a) and Fed. R. Civ. P. 60(b). In response, the government has moved to

enforce the appeal waiver contained in Mr. Akers’ plea agreement. We grant the

motion and dismiss the appeal.

*
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 This order and judgment is not binding precedent, except under the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.
 Mr. Akers is no stranger to this court. Although he pleaded guilty in 2005

to one count of wire fraud and entered into a plea agreement that contained a

waiver of his right to appeal or collaterally attack his sentence, he has filed a

number of appeals with this court. The government did not seek to enforce the

waiver with respect to Mr. Akers’ appeal from his sentence because it fell within

an exception to the waiver for upward departures. The other appeals arose from

the denial of various post-conviction motions and we enforced the waiver in those

cases. See United States v. Akers, 317 F. App’x 798, 804 (10th Cir.), cert.

denied, 130 S. Ct. 656 (2009) (resolving four appeals); United States v. Akers,

281 F. App’x 844, 845 (10th Cir.) (per curiam), cert. denied, 129 S. Ct. 291

(2008).

Most recently, however, we denied the government’s motion to enforce the

waiver with respect to an appeal from the denial of a 28 U.S.C. § 2255 motion in

which Mr. Akers asserted that he received ineffective assistance of counsel in the

negotiation of his plea and waiver. We concluded that Mr. Akers’ plea agreement

had contained an explicit exception for that type of ineffective-assistance claim

(also known as a “Cockerham claim,” based on our decision in United States v.

Cockerham, 237 F.3d 1179 (10th Cir. 2001)), and that therefore his appeal from

the denial of his § 2255 motion was outside the scope of his appellate waiver.

See United States v. Akers, No. 09-3341, Order at 2 (10th Cir. Apr. 13, 2010).

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 Shortly after Mr. Akers filed his § 2255 appeal, he filed a motion to vacate

his conviction pursuant to Rule 33(a) and Rule 60(b). The district court

concluded it lacked jurisdiction to consider the motion because of Mr. Akers’

pending § 2255 appeal and because the motion appeared to be a second or

successive § 2255 motion that had been filed without authorization. Mr. Akers’

current appeal is from that decision.

The government has again moved to enforce the waiver contained in

Mr. Akers’ plea agreement. In reviewing a motion to enforce an appellate waiver

contained in a plea agreement, we consider: “(1) whether the disputed appeal

falls within the scope of the waiver . . . ; (2) whether the defendant knowingly

and voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315,

1325 (10th Cir. 2004) (en banc) (per curiam). Mr. Akers appears to be

challenging only the first factor, asserting in response to the motion to enforce

that his appeal waiver is inapplicable to this appeal.

The government contends that Mr. Akers’ appeal falls within the scope of

his waiver. The plea agreement states that Mr. Akers is “knowingly and

voluntarily waiv[ing] any right to appeal or collaterally attack any matter in

connection with [his] prosecution, conviction, and sentence.” Aplee. App., Vol. 1

at A-16, ¶ 10. The agreement further provides that Mr. Akers is waiving

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 any right to challenge [his] sentence or otherwise attempt to modify
or change his sentence or [the] manner in which it was determined in
any collateral attack, including, but not limited to, a motion brought
under Title 28, U.S.C. § 2255 [except as limited by United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)] . . . .

Id. at A-16 (brackets in original).

Relying on the reasoning we employed in denying the government’s motion

to enforce the waiver with respect to Mr. Akers’ § 2255 appeal, Mr. Akers argues

that his current appeal is also governed by our holding in Cockerham and that “a

plea agreement waiver of post-conviction rights does not waive the right to bring

a [28 U.S.C.] § 2255 motion based upon ineffective assistance of counsel claims

challenging the negotiation of the plea and waiver.” Resp. to Mot. to Enforce at

3. Initially we note that Mr. Akers’s current appeal does not involve a § 2255

motion. But we need not resolve the question of whether our reasoning in

Cockerham extends to other post-conviction motions raising ineffective of

assistance claims because the exception in Cockerham does not apply to the claim

in Mr. Akers’ current motion.

The Cockerham exception only applies to ineffective assistance of counsel

claims challenging the negotiation of the plea and waiver and does not apply to

ineffective assistance of counsel claims challenging counsel’s performance at

sentencing. See Cockerham, 237 F.3d at 1187. After reviewing Mr. Akers’

motion to vacate his conviction, we conclude that the motion on its face does not

fall within the Cockerham exception. In the motion, Mr. Akers alleges that the

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district court “was involved in a collusion with the prosecutor and [his]

court-appointed defense [attorney]” and this led to the district court making

findings based on false information. See Mot. to Vacate Judgment at 3-4.

Although the motion is not a model of clarity, this argument appears to relate to

factual findings that were made at sentencing. In any event, Mr. Akers’ motion

fails to articulate any claim relating to his counsel’s conduct in connection with

the negotiation of his plea agreement. See id. at 1-4. Accordingly, we conclude

that his appeal is covered by the scope of the waiver in his plea agreement.

Mr. Akers does not argue that his waiver was not knowing and voluntary.

We note that in his earlier appeals we found that the waiver was knowing and

voluntary. See Akers, 317 F. App’x at 801-02. Likewise, Mr. Akers does not

argue that enforcing the waiver would result in a miscarriage of justice. Although

an appellate waiver may be excused under this factor “where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid,” Hahn, 359 F.3d at 1327, we note again that the post-conviction

motion involved in this appeal does not contain allegations of ineffective

assistance of counsel in connection with the negotiation of the plea waiver. In

any event, Mr. Akers has already sought relief for any alleged ineffective

assistance of counsel in connection with the negotiation of his plea waiver by

filing a § 2255 motion in district court. His appeal from the district court’s denial

of that § 2255 motion is currently proceeding in this court.

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 Accordingly, we GRANT the government’s motion to enforce and

DISMISS this appeal.

ENTERED FOR THE COURT
PER CURIAM

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