F I L E D
United States Court of Appeals
Tenth Circuit
DEC 4 2001
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 00-6326
v. (D.C. No. CR-99-121-T)
(W. District of Oklahoma)
TIMOTHY CURDELL FRIDAY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO , Circuit Judge, BRORBY , Senior Circuit Judge, and
ROGERS , Senior District Judge. **
Timothy C. Friday appeals the district court’s denial of his motion to
withdraw his guilty plea to one count of conspiracy to possess with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. We
conclude that we lack jurisdiction and dismiss.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The Court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Richard D. Rogers, of the United States District Court
for the District of Kansas, sitting by designation.
Friday pleaded guilty to conspiracy in exchange for the government’s
promise to dismiss five counts of possession with intent to distribute cocaine
base, 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. Pursuant to the plea agreement,
Friday waived his right to appeal or collaterally challenge his “guilty plea and
any other aspect of his conviction” as well as his sentence. (1 R. Doc. 197 at 5.)
The agreement further provided:
(i) defendant specifically does not waive the right to appeal an
upward departure from the sentencing guideline range determined by
the court to apply to this case, and (ii) his waiver of rights to appeal
and to bring collateral challenges shall not apply to appeals or
challenges based on changes in the law reflected in Tenth Circuit or
Supreme Court cases decided after the date of this agreement which
are held by the Tenth Circuit or Supreme Court to have retroactive
effect.
(Id. at 5–6.)
After the Presentence Investigation Report (“PSR”) was prepared, and
“[a]fter reading some court decisions and thinking about the facts and
circumstances of the pending matter and his own actions,” appellant moved to
withdraw his plea. (1 R. Doc. 263 at 1.) The district court denied the motion,
concluding that “there [was] simply no credible evidence to support the claim
that there’s a fair and just reason for the motion to be withdrawn.” (4 R. at 50.)
Thereafter, the district court sentenced Friday to 210 months imprisonment.
On appeal, Friday claims (1) that the district court erred by overruling his
objections to the PSR, (2) that it should have granted his motion to withdraw his
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guilty plea, and (3) that he received ineffective assistance of counsel. The
government answers that the appeal should be dismissed because “the Plea
Agreement . . . included a provision waiving any right of appeal so long as the
sentence imposed by the court was within the applicable guideline range.”
(Appellee’s Br. at 2.) “If [the] waiver is effective, we would certainly overreach
our jurisdiction to entertain this appeal when the plea agreement deprived
Defendant of the right to appeal.” United States v. Rubio , 231 F.3d 709, 711
(10th Cir. 2000). “To avoid dismissal of his appeal, [appellant] must show why
we should not enforce the waiver provision of the plea agreement.” Id.
Friday argues that he received ineffective assistance of counsel during the
plea process. (Appellant’s Resp. Att’y’s Anders Br. at 1 (“Appellant believes
that there are issues that have reasonable merit, that may not have appeared
meritorious to the counsel, at the time of the conviction and sentencing.”); id.
(“Appellant’s inadequate knowledge of the laws pertaining to the conviction and
sentence . . . make for an unfair disadvantage against appellant . . . .”).)
Although it is true that Friday’s right to bring his ineffective assistance of
counsel claim on appeal may not be waived in a plea agreement, United States v.
Black , 201 F.3d 1296, 1301 (10th Cir. 2000), we will not pass on that claim at
this juncture for reasons stated in United States v. Galloway , 56 F.3d 1239, 1240
(10th Cir. 1995):
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Ineffective assistance of counsel claims should be brought in
collateral proceedings, not on direct appeal. Such claims brought on
direct appeal are presumptively dismissible, and virtually all will be
dismissed. . . .
The reasons for this rule are self-evident. . . . A factual record
must be developed in and addressed by the district court in the first
instance for effective review.
As the district court observed, “there simply [was] no . . . evidence before [it] to
question the quality of” counsel. (4 R. at 47.)
Although not argued by appellant, none of the other grounds for not
enforcing waivers apply in this case. See Black , 201 F.3d at 1301 (stating that
waiver of the right to appeal will not preclude an appeal if the waiver was not
knowing and voluntary or resulted in a sentence that either exceeds the statutory
maximum or is tainted by racial bias). In particular, our de novo review of the
record indicates Friday knowingly and voluntarily entered into the plea
agreement. Rubio , 231 F.3d at 712 (“We review the question of whether the plea
was knowing and voluntary de novo.” (citation omitted)). Furthermore, we note
that neither of the exceptions contained in the plea agreement itself—for appeals
of upward departures from the applicable sentencing guidelines range and for
appeals based on new Supreme Court and Tenth Circuit law—is implicated.
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The matter is DISMISSED . 1
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
Counsel for appellant filed an Anders brief characterizing this appeal as
frivolous and seeking permission to withdraw as counsel. See Anders v.
California , 386 U.S. 738, 744 (1967) (permitting counsel who considers an
appeal to be wholly frivolous to advise the court of that fact, request permission
to withdraw from the case, and submit a brief referring to portions of the record
that arguably support the appeal). Counsel’s motion to withdraw is granted.
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