NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0270n.06
Case No. 21-5201
UNITED STATES COURT OF APPEALS FILED
Jul 08, 2022
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
)
ELIEZER ALBERTO JIMENEZ,
) ON APPEAL FROM THE UNITED
Petitioner - Appellant, ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
v. ) KENTUCKY
)
UNITED STATES OF AMERICA, ) OPINION
Respondent - Appellee. )
)
Before: SILER, BUSH, and MURPHY, Circuit Judges.
SILER, J., delivered the opinion of the court in which BUSH and MURPHY, J.J., joined.
BUSH, J. (pp 8–11), delivered a separate concurring opinion.
SILER, Circuit Judge. Eliezer Alberto Jimenez filed a pro se 28 U.S.C. § 2255 motion
challenging his 87-month prison sentence. The district court denied the motion, however, for three
related reasons. First, as part of his plea agreement Jimenez waived the right to collaterally attack
his sentence on every ground except for ineffective assistance of counsel. Second, in the district
court’s view, Jimenez’s pro se § 2255 motion did not raise an ineffective-assistance claim, so he
failed to raise the only claim he preserved. And third, the district court rejected Jimenez’s
argument that enforcement of his plea agreement’s collateral-attack waiver would work a
“miscarriage of justice.” We agree with the district court in all three respects, so we affirm.
No. 21-5201, Jimenez v. United States
I
Jimenez helped transport and launder nearly $300,000 in illegal drug proceeds. The
government charged him with conspiracy to launder money, 18 U.S.C. § 1956(h), and he pleaded
guilty to that charge. His plea agreement included an expansive waiver of post-conviction rights.
With an exception for ineffective-assistance claims, the waiver prohibits Jimenez from collaterally
attacking his “guilty plea, conviction, and sentence.” Jimenez’s plea agreement provides, in
relevant part:
8. The Defendant waives the right to appeal the guilty plea and conviction.
The Defendant waives the right to appeal any determination made by the Court at
sentencing with the sole exception that the Defendant may appeal any aspect of the
sentence if the length of the term of imprisonment exceeds the advisory sentencing
guidelines range as determined by the Court at sentencing. Except for claims of
ineffective assistance of counsel, the Defendant also waives the right to attack
collaterally the guilty plea, conviction, and sentence.
...
14. The Defendant and the Defendant’s attorney acknowledge that the
Defendant understands this Agreement, that the Defendant’s attorney has fully
explained this Agreement to the Defendant, and that the Defendant’s entry into this
Agreement is voluntary.
Prior to sentencing, the probation office compiled its findings and recommendations in a
presentence investigation report. The report assessed Jimenez four criminal history points: one
point for a 2015 Minnesota state-court conviction, one point for a 2016 Minnesota state-court
conviction, and two points for committing the instant offense while serving probation for the 2015
conviction. Paired with an offense level of 25, this yielded a guidelines imprisonment range of
70–87 months.
Jimenez filed a set of pro se objections to the presentence investigation report. As relevant
here, he objected to his criminal history score because three of the four points stemmed from his
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No. 21-5201, Jimenez v. United States
2015 state conviction, and, at the time of sentencing, he was challenging that conviction in
Minnesota’s state courts. He believed the district court shouldn’t punish him—shouldn’t heighten
his criminal history score—because of a disputed state-court conviction. Jimenez ultimately
withdrew these objections, and the district court sentenced him to 87 months in prison followed
by three years of supervised release.
Approximately eight months after Jimenez’s federal sentencing, a Minnesota state court
vacated his 2015 conviction as obtained “in violation of . . . the laws and constitution of the United
States and the State of Minnesota.” In response, Jimenez filed a pro se 28 U.S.C. § 2255 motion
to modify his sentence, and he attached to that motion a pro se memorandum of law. Citing
Johnson v. United States, 544 U.S. 295 (2005), he asked the district court to reopen his sentencing,
recalculate his guidelines range, and impose a new sentence in light of his newly diminished
criminal history score.1 The district court denied the motion because Jimenez waived most of his
post-conviction rights, including the right to bring a Johnson challenge, when he signed a plea
agreement with an expansive waiver provision. And even though Jimenez’s plea agreement
preserved the right to bring a post-conviction ineffective-assistance claim, the district court noted
that Jimenez’s § 2255 motion lacked the basic features of an ineffective-assistance claim. Most
importantly, neither the motion nor its accompanying memorandum provided any allegations
explaining how Jimenez’s trial counsel performed ineffectively.
Jimenez, now represented by counsel, raises two arguments on appeal. First, he asks us
not to enforce his plea agreement’s collateral-attack waiver because doing so, he contends, would
1
Johnson held, in relevant part, “that a defendant given a sentence enhanced for a prior conviction is entitled to a
reduction if the earlier conviction is vacated.” 544 U.S. at 303.
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No. 21-5201, Jimenez v. United States
work a miscarriage of justice. Second, he says the district court erred when it determined his
§ 2255 motion did not raise a claim for ineffective assistance of counsel.
II
We have jurisdiction under 28 U.S.C. §§ 1291 & 2253. Both parties have conceded the
proper standard of review is de novo. See Recording of Oral Arg. at 13:00–14:05; Appellee’s Br.
at Page 5.
III
“[S]o long as the waiver is made knowingly and voluntarily,” a criminal defendant can
waive the right to appeal and collaterally attack his sentence. See United States v. Beals, 698 F.3d
248, 255 (6th Cir. 2012). “A defendant may waive any right, even a constitutional one, in a plea
agreement, if he relinquishes that right knowingly and voluntarily. It follows that a defendant may
waive his right to bring future postconviction challenges, which are not constitutionally required,
so long as the waiver is knowing and voluntary.” Portis v. United States, 33 F.4th 331, 334–35
(6th Cir. 2022) (citation omitted).
We find that Jimenez knowingly and voluntarily waived his collateral-attack rights. The
terms of the plea agreement and “the colloquy at the change of plea hearing” are highly probative
factors in a knowledge/voluntariness inquiry, United States v. Ferguson, 669 F.3d 756, 765 (6th
Cir. 2012), and both factors suggest a knowing and voluntary waiver took place in this case. The
plea agreement that Jimenez signed has a broad and unambiguous waiver provision, and the district
court explained the provision—its meaning and its consequences—before accepting Jimenez’s
guilty plea. Consider the following colloquy.
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THE COURT: Paragraph 8 [of the plea agreement] also states that except
for claims of ineffective assistance of counsel, you are waiving the right to attack
collaterally the guilty plea, the conviction, and the sentence.
When you give up the right to collaterally attack, as that term is used in this
sentence, you’re giving up the right to file a separate lawsuit or a separate motion
to challenge it. Sometimes that’s referred to as a habeas motion or a habeas
proceeding.
And with one exception you would not be able to attack collaterally the
guilty plea, the conviction, or the sentence. The exception would be a claim of
ineffective assistance of counsel. You could still make such a claim in a collateral
proceeding, but you’d be limited to that claim.
...
And do you understand that as well?
JIMENEZ: Yes, Your Honor.
Jimenez was thus well-aware that he was waiving most of his post-conviction rights as a condition
of his plea.
A finding of knowledge and voluntariness does not, however, end our inquiry. We have
indicated that we will refuse to enforce knowing and voluntary waivers in at least three instances:
(1) when a criminal defendant attacks his plea agreement as “the product of ineffective assistance
of counsel, ” In re Acosta, 480 F.3d 421, 422 & n.2 (6th Cir. 2007), (2) when a district court
sentences a criminal defendant above the statutory maximum, Vowell v. United States, 938 F.3d
260, 271 (6th Cir. 2019) (quoting United States v. Caruthers, 458 F.3d 459, 471–72 (6th Cir.
2006)), and (3) when a district court punishes a defendant because of the defendant’s race,
Ferguson, 669 F.3d at 764.
None of those exceptions applies here. Exceptions two and three are clearly inapplicable.
The district court, after all, sentenced Jimenez well below the statutory maximum of 20 years, and
nothing suggests racial discrimination influenced the district court’s sentencing decision. The first
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No. 21-5201, Jimenez v. United States
exception also does not apply because Jimenez explicitly preserved his right to bring an
ineffective-assistance claim on collateral attack, so any such claim would fall outside the scope of
the waiver.
That said, as the district court explained, Jimenez failed to raise an ineffective-assistance
claim in his § 2255 motion. His motion never mentioned ineffective assistance of counsel or the
Sixth Amendment right to counsel, nor did it explain (or even hint at) how his trial counsel
performed ineffectively. See Recording of Oral Arg. at 10:49–11:10 (Jimenez’s counsel conceding
“that is not there, Your Honor.”). And even though the memorandum accompanying the motion
passingly cited Strickland v. Washington, 466 U.S. 668 (1984),2 an unexplained citation “in [a]
brief in support of [a] § 2255 motion . . . is wholly insufficient to raise the issue of ineffective
assistance of counsel.” Cf. Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000). Because
neither Jimenez’s § 2255 motion nor the accompanying memorandum (A) listed ineffective-
assistance as a ground for relief or (B) stated any facts supporting an ineffective-assistance claim,
the ineffective-assistance exception in his plea agreement waiver does not apply here.3 See R.
Governing Section 2255 Proceedings 2(b) (explaining how a § 2255 motion must “specify all the
grounds for relief available to the moving party” and “state the facts supporting each ground”).
Jimenez asks us to recognize a “miscarriage of justice” exception to waiver enforceability,
see, e.g., United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc), but we decline to do so in
this case. Jimenez knowingly and voluntarily waived the right to collaterally attack his sentence,
2
We note that the Strickland language in Jimenez’s memorandum appears to come from a “form” paragraph cut-and-
pasted from another prisoner’s pro se filing. The Strickland rule material, for example, repeatedly refers to someone
named “Kemp” (rather than Jimenez).
3
We realize Jimenez filed his § 2255 motion pro se. And we recognize that a document filed pro se “is to be liberally
construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). But the liberal-construction rule does not “abrogate basic
pleading essentials,” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), such as the requirement that a § 2255
petitioner state the factual bases underpinning every claim for relief.
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and this situation, i.e., a vacated state-court conviction and a diminished guidelines range, was a
foreseeable consequence of that waiver. Enforcing the waiver and applying the plea agreement as
written does not work a miscarriage of justice.
We recognize that other circuit courts decline to enforce valid appeal or collateral-attack
waivers when doing so would result in a “miscarriage of justice.” And they take varying
approaches to identify the circumstances that meet this standard. Compare United States v. Teeter,
257 F.3d 14, 25–26 (1st Cir. 2001), with Andis, 333 F.3d at 891–92. Yet this circuit debate would
not affect the outcome here. No matter the standard, Jimenez identifies no circuit court that has
found a miscarriage of justice in his circumstances—when a court subsequently vacates a prior
conviction used to enhance a defendant’s advisory guidelines range.
* * *
AFFIRMED.
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No. 21-5201, Jimenez v. United States
BUSH, Circuit Judge, concurring. I join today’s opinion in full. I write separately to
explain some additional points about why the district court’s judgment must be affirmed. The
parties briefed this case on the assumption that we should determine the availability of a
miscarriage-of-justice exception to Jimenez’s collateral-attack waiver first, and, only if we found
such an exception unavailable, determine whether Jimenez raised an ineffective-assistance claim.
In my view, those arguments should be considered in reverse order. Jimenez contends on appeal
that his plea agreement itself, particularly its collateral-attack waiver, may have been the product
of ineffective assistance. See, e.g., Appellant’s Br. at 44. And if that were true, it would likely
render the waiver unenforceable. See, e.g., Portis v. United States, 33 F.4th 331, 335 (6th Cir.
2022). So if Jimenez had validly raised an ineffective-assistance claim, we would have had no
occasion to weigh a miscarriage-of-justice exception to an otherwise-enforceable collateral-attack
waiver. We instead would have demurred on the miscarriage-of-justice issue and remanded the
ineffective-assistance claim to the district court for a hearing on Jimenez’s § 2255 motion. The
district court then could have taken evidence on whether Jimenez received ineffective assistance
during his plea bargaining. And only if it turned out that Jimenez received effective assistance
(and thus that the waiver is enforceable) would we have needed to examine a potential miscarriage-
of-justice exception.
Today, however, we properly consider that exception because Jimenez never raised an
ineffective-assistance claim where it mattered: his pro se § 2255 motion and accompanying
memorandum of law. Indeed, those documents articulate nothing like Jimenez’s new theory on
appeal: that he would not have agreed to the waiver if he had received effective counsel. Nowhere
in his § 2255 motion—written on the standard-form § 2255 template available to prisoners—did
he mention Strickland, “ineffective assistance,” or anything that his lawyer should have done but
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failed to do during any phase of the proceeding. See generally Mot., R. 201. And that was despite
the explicit, repeated instruction in the template to “state the specific facts that support your claim.”
See, e.g., id. at 4. In reality, Jimenez wanted a straightforward sentence reduction under Johnson
v. United States, 544 U.S. 295, 303 (2005), which is why his § 2255 motion never even suggested
ineffective assistance.
Realizing that fact, Jimenez’s appellate counsel contends that the ineffective-assistance
argument was preserved not in Jimenez’s original motion, but in the accompanying memorandum
of law. See Appellant’s Br. at 49. As the district court recognized, however, Jimenez’s
memorandum of law comes no closer to stating an ineffective-assistance claim. True, it recites the
Strickland standard amongst a hodgepodge of other collateral-attack caselaw. But like the motion,
the memorandum makes no attempt to link that caselaw to any act or omission of Jimenez’s lawyer
during his plea bargaining, sentencing, or any other phase of the proceeding. Cf. R. Governing
Section 2255 Proceedings Rule 2(b)(1)–(3). And no surprise there. Jimenez plainly lifted that
legal-standard section from the petition of another prisoner named Kemp. As a result, it included
accurate but irrelevant propositions about, for instance, Kemp’s rights at trial. See, e.g., Mem. at
6, R. 201-1 (“Further, Kemp must show that counsel’s errors were prejudicial and deprived him
of a ‘fair trial,’ or in other words, a trial whose result is reliable.”). It said nothing about the
defectiveness of Jimenez’s plea.
Indeed, we pressed counsel at oral argument about what within this cut-and-paste contained
anything specific to Jimenez’s case indicating ineffective assistance. Recording of Oral Arg. at
9:56–10:20. But counsel could muster no explanation for these odd and irrelevant portions of the
legal-standard section (other than Jimenez having cribbed the Strickland boilerplate from
petitioner Kemp). Id. And counsel likewise conceded that neither Jimenez’s memorandum nor
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No. 21-5201, Jimenez v. United States
his motion contains any specific allegation about how his lawyer rendered ineffective assistance.1
See id. at 10:49–11:10.
It is true, of course, that Jimenez initially filed those documents pro se, and so they must
be afforded a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But the liberal-
construction rule is not a liberal-invention rule. It does not require the district court to lawyer on
behalf of the movant or to conjure unevidenced claims from thin air. See, e.g., Pliler v. Ford, 542
U.S. 225, 231 (2004); Coleman v. Shoney’s Inc., 79 F. App’x 155, 157 (6th Cir. 2003) (quoting
United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999)); Payne v. Sec’y of Treas., 73 F. App’x
836, 837 (6th Cir. 2003). Here, therefore, the district court properly determined that Jimenez never
raised an ineffective-assistance claim.
Moreover, Jimenez waived his right, unambiguously and in open court, to bring any
collateral attack other than for ineffective assistance. Jimenez thus necessarily knew that the exact
claim he now seeks to press—a mere sentence-reduction request—was subject to the waiver. See
United States v. Ferguson, 669 F.3d 756, 765 (6th Cir. 2012). And as to that claim, the fact remains
that Jimenez’s vacated conviction implicates only his advisory guidelines range—not the
sentencing range set by statute, and thus not the lawfulness of his sentence. See 18 U.S.C.
1
Much too late, Jimenez’s counsel on appeal suggested that the ineffective assistance really occurred when Jimenez’s
old lawyer supposedly advised Jimenez that seeking modification of his federal sentence based on the potential vacatur
of his 2015 state conviction would be pointless. Indeed, Jimenez now claims that his counsel below believed a vacatur
of the state conviction could reduce Jimenez’s sentence only if the vacatur occurred before the federal sentencing, and
that so long as Jimenez’s criminal history was accurate at the time of his sentencing, future vacatur of the state
conviction could never be used to reduce the corresponding federal sentence. At least this is the inference Jimenez’s
appellate counsel draws from Jimenez’s former counsel’s remark in a brief below that “[t]he Court is now aware
through documents received by the probation officer and filed with the Court, that there is a legal challenge going on
to the above mentioned conviction, but that in itself has no legal significance unless it is resolved prior to the
sentencing.” See Appellant’s Br. at 9–10, 44. Yet far from a smoking gun, it is not at all clear from this comment
that Jimenez’s former counsel somehow advised Jimenez that vacatur of the state conviction could never lead to post-
conviction relief. Rather, counsel’s comment at the time was actually correct—that the mere possibility that Jimenez’s
conviction might be vacated some time after the federal sentencing was not itself sufficient to seek a reduction of the
federal sentence during the sentencing.
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No. 21-5201, Jimenez v. United States
§§ 1956(a), (h). Indeed, the district court today could lawfully reimpose the precise sentence
Jimenez received. See id. I agree that in these circumstances, no miscarriage-of-justice exception
is available.
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