United States v. King

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT June 22, 2012
___________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 11-3259
EULET KING, (D.C. No. 2:09-CR-20133-JWL-19)
(D. Kan.)
Defendant-Appellant.
____________________________________
ORDER AND JUDGMENT*
____________________________________

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
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Defendant pleaded guilty, pursuant to a plea agreement, to Counts 1 and 8 of the

Superseding Indictment. Count 1 charged conspiracy to distribute and to possess with

intent to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A)(vii). Count 8 charged conspiracy to commit money

laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h).

Defendant’s appeal hinges on her allegation that prior to entering the plea of guilty on the

day of her plea hearing, she “was taken out of her cell at the D.O.J. by a detective/witness

*
This order and judgment is not binding precedent except under the doctrines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.
**
After examining the parties’ briefs and the appellate record, 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) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
without benifit [sic] of counsel, was questioned, intimidated, pressured and cooerced [sic]

into her plea, then offered cookies and tea.” Rec. vol. 1, at 103. Defendant informed her

counsel of the incident. Defendant denied knowing the detective/witness who took her

out of her cell and defense counsel took no action beyond questioning Defendant about

the incident. Later that day, neither Defendant nor defense counsel addressed the

incident in the plea hearing. During the plea hearing, the following discussion took

place:

THE COURT: . . . Now, Miss King, . . . has anybody made any sort
of promise or inducement in order to get you to plead guilty?
THE DEFENDANT: No, Your Honor.
THE COURT: Has anyone forced or threatened you or your family
or your loved ones or your friends or anything like that in any way in order
to get you to plead guilty?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you telling me, then, that you’re entering this
plea of guilty freely and voluntarily?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And that the only reason you’re entering the plea of
guilty to these charges is because you are, in fact, guilty of them?
THE DEFENDANT: Yes, Your Honor.
....

THE COURT: All right. Now this decision, then, to enter a plea of
guilty subject to this 11(c)(1)(C) Plea Agreement is your decision and not
your attorney’s decision, is that correct?
THE DEFENDANT: It is my decision.
THE COURT: Mr. Thomas[on], do you know of any reason why
Miss King should not enter a plea of guilty to the charges contained in
Counts 1 and 8 of the Superceding Indictment, all subject to this
11(c)(1)(C) Plea Agreement?
MR. THOMASON: I do not.
THE COURT: All right. It is the finding of the Court in the case of
the United States of America verses [sic] Eulet King, that the defendant is
fully competent and capable of entering an informed plea; that she was
competent at the time the crime charged; and that her plea of guilty is a
knowing and voluntary plea supported by an independent basis in fact

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 containing each essential element of the offenses contained in Counts 1 and
8 of the Superceding Indictment.
Her plea is therefore accepted and she is now adjudged guilty of
both of those felonies. Moreover, the Court is satisfied that it is appropriate
for it to also accept the Plea Agreement in this case and it does so meaning
that it will be bound by the sentencing recommendation of the parties.

Rec. vol. 2, at 24–26, 31–33. Defendant’s plea agreement contained a provision entitled

“Waiver of Appeal and Collateral Attack.” Rec. vol. 1, at 96. This provision provided:

The defendant knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution, the
defendant’s conviction, or the components of the sentence to be imposed
herein including the length and conditions of supervised release. . . .
Notwithstanding the forgoing waivers, the parties understand that the
defendant in no way waives any subsequent claims with regards to
ineffective assistance of counsel or prosecutorial misconduct.

Id. at 96–97. The plea agreement stated two other times that Defendant entered the plea

agreement freely, voluntarily, and without coercion.

Three months after pleading guilty, Defendant filed a pro se motion, requesting,

among other things, to withdraw her plea based on coercion by law enforcement and to

substitute counsel based on ineffective assistance. The district court held an ex parte

hearing with defense counsel and Defendant regarding Defendant’s motion. Defendant

told the court the following interaction with law enforcement took place:

[Someone from law enforcement] told me, well, . . . I wanted to talk to you,
but I do not want these girls to hear what I’m saying to you, and he said to
me, I’m about to do the paperwork for the trial, and I am here to find out if
you are going to take this plea. So I’m like, take this plea? I said, where is
my attorney at? He said, he’s not here right now, so I’m here to see if
you’re going to take this plea or not. If I was you, I would take this plea.
And I’m like, I guess, you know, and he [sic] like, well, take this plea. So
he brought me back [to my cell].

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Rec. vol. 2, at 39. The district court apparently assumed the incident took place, but

found the law enforcement conduct “was nowhere near approaching coercion.” Id. at 45.

The court withheld judgment on whether this type of contact with law enforcement was

appropriate. Because defense counsel represented Defendant, the district court denied

Defendant’s motion to withdraw her guilty plea. The district court told Defendant she

could “pursue a motion to withdraw the plea,” but there must be an adequate basis for the

motion and it must be filed by defense counsel. Id. The court granted defense counsel

leave to consider whether to file a motion to withdraw the plea. Defense counsel did not

file such a motion. Regarding the motion to substitute counsel for ineffective assistance,

the district court stated: “[Defendant], you are not entitled to a change in lawyers.

There’s nothing inappropriate that [defense counsel] did in this matter. He’s represented

you diligently and secured for you an excellent plea agreement.” Id. The district court

gave Defendant a choice—to proceed pro se or continue being represented by her

appointed defense counsel. Defendant chose to continue being represented by her

appointed defense counsel.

One month later at the sentencing hearing, defense counsel made an oral motion to

withdraw as counsel based on Defendant’s allegation of ineffective assistance of counsel.

The district court held an ex parte hearing with defense counsel and Defendant to

consider the matter. Defense counsel argued, among other things, that Defendant

“believes that she should have been qualified for the safety valve, [and] that I didn’t

negotiate a proper plea for her.” Id. at 54–55. The district court said, “In the absence of

[Defendant’s] willingness to cooperate and provide substantial assistance, which would

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have opened the door on her behalf [to a sentence below the statutory minimum], I

suspect that counsel’s work was as good as could be anticipated.” Id. at 56. The court

found no basis to grant defense counsel’s motion to withdraw and moved forward with

sentencing. The district court sentenced Defendant to 120 months’ imprisonment, which

was the statutory minimum and consistent with the binding plea agreement. Defendant

now appeals. The Government moves to enforce the plea agreement and the appeal

waiver therein pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en

banc) (per curiam).

This appeal raises two issues. First, we consider whether to enforce Defendant’s

appeal waiver despite her claim that law enforcement coerced her to accept the plea

agreement.1 Next, we address whether Defendant’s allegation of ineffective assistance of

counsel can be considered on direct appeal. Exercising jurisdiction under 28 U.S.C.

§ 1291, we grant the Government’s motion to enforce the plea agreement and dismiss the

appeal.

I.

In determining whether to enforce an appeal waiver in a plea agreement, we

consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate

rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights;

and (3) whether enforcing the waiver would result in a miscarriage of justice.” Hahn,

1
Defendant argues the district court abused its discretion when it denied (1)
Defendant’s pro se motion to withdraw her plea; (2) Defendant’s pro se motion to
substitute counsel; and (3) defense counsel’s motion to withdraw as counsel. We do not
consider these issues on the merits because they are within the scope of the appeal
waiver. See infra Part I.A.
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359 F.3d at 1325. Whether to enforce an appeal waiver is a question of law we review de

novo. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008).

A.

Under the first prong, Defendant concedes the district court’s denial of her pro se

motion to withdraw her guilty plea is within the scope of the appellate waiver. However,

Defendant argues the district court’s denial of her pro se motion to substitute counsel and

defense counsel’s motion to withdraw as counsel are outside the scope of the appellate

waiver. “In determining a waiver’s scope, we will ‘strictly construe appeal waivers and

any ambiguities in these agreements will be read against the Government and in favor of

a defendant’s appellate rights.’” Hahn, 359 F.3d at 1325 (brackets omitted) (quoting

United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc)).

Defendant cites United States v. Porter, 405 F.3d 1136 (10th Cir. 2005), to support

her argument that a district court’s denial of a motion to substitute counsel is outside the

scope of an appellate waiver. Defendant’s reliance on Porter is misplaced. In Porter, the

defendant “knowingly and voluntarily waive[d] [his] right to challenge [his] sentence,

and the manner in which the sentence was determined,” a very narrow appellate waiver.

Id. at 1139. Furthermore, in Porter, we considered the effect of a guilty plea, not an

appeal waiver, on the defendant’s appeal from a denial of a motion to substitute counsel.

Id. at 1140–41. In our case, Defendant’s waiver was very broad and included “any right

to appeal or collaterally attack any matter in connection with this prosecution, the

defendant’s conviction, or the components of the sentence to be imposed herein.” Rec.

vol. 1, at 96. Defendant only reserved the right to appeal based on claims of ineffective

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assistance of counsel and prosecutorial misconduct. In Leon v. United States, 476 F.3d

829, 832 (10th Cir. 2007), we acknowledged an appeal of a denial of a motion to

withdraw a guilty plea is a challenge to the validity of the appeal waiver. Relying on

Leon, we have held a defendant’s “proposed challenge to the district court’s denial of his

motions to withdraw his plea and to substitute counsel are attacks on his conviction, and

thus are within the scope of his appeal waiver.” United States v. Perry, 432 F. App’x

728, 730 (10th Cir. 2011) (unpublished). Although we strictly construe appellate waivers

and ambiguities therein, we see no validity in Defendant’s argument that her pro se

motion to substitute counsel and defense counsel’s motion to withdraw as counsel are

outside the scope of the appeal waiver. Therefore, we hold both motions are within the

scope of the appeal waiver.

B.

Under the second prong, Defendant argues “her appeal waiver was not voluntary

because she was coerced into accepting the plea agreement, which included the waiver.”

Aplt. Br. at 16.

When determining whether a waiver of appellate rights is knowing and
voluntary, we especially look to two factors. First, we examine whether the
language of the plea agreement states that the defendant entered the
agreement knowingly and voluntarily. Second, we look for an adequate
Federal Rule of Criminal Procedure 11 colloquy.

Hahn, 359 F.3d at 1325 (internal citation omitted). Defendant has the burden to establish

she did not understand the waiver. See United States v. Cudjoe, 634 F.3d 1163, 1166

(10th Cir. 2011). Defendant asserts “she was coerced to take the plea by the comments

and actions of the law enforcement officer who spoke to her the day of her plea hearing,

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and by [defense counsel’s] refusal to investigate the incident or obtain a continuance . . .

[to] investigate it.” Aplt. Br. at 16. First, the district court held a hearing regarding the

incident with law enforcement. The district court determined the conduct by law

enforcement “was nowhere near approaching coercion.” Rec. vol. 2, at 45. Second,

Defendant’s argument regarding coercion is directly contrary to her acknowledgement

during the plea hearing. Defendant said she entered the plea of guilty, and thus the plea

agreement, voluntarily and without force or threat, during the plea hearing. See supra

p. 2. And third, Defendant acknowledged three times in her plea agreement that she

entered the plea agreement voluntarily and without coercion. Based on these facts, we

conclude Defendant voluntarily and knowingly waived her appellate rights.

C.

The third prong of the analysis requires us to determine whether enforcing the

appeal waiver will result in a miscarriage of justice. Hahn, 359 F.3d at 1327.

Appellate waivers are subject to certain exceptions, including [1] where the
district court relied on an impermissible factor such as race, [2] where
ineffective assistance of counsel in connection with the negotiation of the
waiver renders the waiver invalid, [3] where the sentence exceeds the
statutory maximum, or [4] where the waiver is otherwise unlawful.

Id. (brackets in original) (quoting Elliot, 264 F.3d at 1173). Enforcement of an appeal

waiver will result in a miscarriage of justice when one of the exceptions is met. Id.

Defendant argues enforcing the waiver will result in a miscarriage of justice under the

second exception of ineffective assistance of counsel and the fourth exception of being

otherwise unlawful.

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 First, Defendant asserts there was ineffective assistance of counsel in connection

with the negotiation of the plea agreement because defense counsel failed to investigate

the incident involving a law enforcement officer prior to the plea hearing. A claim of

ineffective assistance of counsel must generally be brought in a collateral proceeding, not

in a direct appeal. Porter, 405 F.3d at 1144. “This rule applies even where a defendant

seeks to invalidate an appellate waiver based on ineffective assistance of counsel.”

Porter, 405 F.3d at 1144; see also Hahn, 359 F.3d at 1327 n. 13. As we explain further

below, the claim of ineffective assistance of counsel in this case must be brought in a

collateral proceeding.

Second, Defendant argues the appeal waiver is otherwise unlawful because “she

was coerced into accepting the terms of the guilty plea, including the appeal waiver” by

law enforcement. Aplt. Br. at 17. To be otherwise unlawful, “the error must seriously

affect the fairness, integrity or public reputation of judicial proceedings.” Hahn, 359 F.3d

at 1327 (alterations and internal quotation marks omitted). The district court found the

conduct by a law enforcement officer “was nowhere near approaching coercion.” Rec.

vol. 2, at 45. Defendant has asserted no persuasive reasons how enforcing the appeal

waiver will result in a miscarriage of justice. Consequently, she has not met her burden

of proof. See United States v. Leyva-Matos, 618 F. 3d 1213, 1217 (10th Cir. 2010)

(noting a “[d]efendant bears the burden to demonstrate that enforcing the waiver would

result in a miscarriage of justice”). Enforcing the appeal waiver will not result in a

miscarriage of justice so the appeal waiver in Defendant’s plea agreement is enforceable

under the Hahn analysis.

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 II.

The second issue is whether Defendant’s ineffective assistance of counsel claim

may be considered on direct appeal. Ineffective assistance “claims brought on direct

appeal are presumptively dismissible, and virtually all will be dismissed. On direct

appeal, the record is not developed with the purpose of showing counsel’s competence,

and the district court has [usually] not yet had an opportunity to consider counsel’s

effectiveness.” United States v. Polly, 630 F.3d 991, 1003 (10th Cir. 2011) (internal

quotation marks and citations omitted). To overcome the presumption that claims of

ineffective assistance of counsel on direct appeal are dismissible, Defendant must show

the district court’s record is sufficiently developed on the issue to enable meaningful

appellate review. See United States v. Trestyn, 646 F.3d 732, 741 (10th Cir. 2011).

For instance, in United States v. Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007),

the defendant successfully brought a claim of ineffective assistance of counsel on direct

appeal because the district court had heard testimony from both the defendant and

defense counsel regarding an ineffective assistance of counsel claim. Likewise, in United

States v. Carr, 80 F.3d 413, 416 n. 3 (10th Cir. 1996), the district court had held a

lengthy hearing regarding ineffective assistance of counsel and made a specific finding

that defense counsel had provided effective assistance. In Hamilton and Carr, we held

the record had been sufficiently developed on the issue of ineffective assistance to afford

meaningful appellate review on direct appeal. Hamilton, 510 F.3d at 1213; Carr, 80 F.3d

at 416 n. 3. However, in United States v. Samuels, 493 F.3d 1187, 1193 (10th Cir. 2007),

we determined a brief portion of the record regarding the defense counsel’s motion to

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withdraw based on ineffective assistance of counsel does not “completely develop[] all

issues that might be brought in collateral proceedings.” In Samuels, the record had not

been sufficiently developed and we therefore did not consider the claim on direct appeal.

Id.

In this case, Defendant filed a pro se motion to substitute counsel based on

ineffective assistance of counsel. The district court heard from defense counsel and

Defendant regarding Defendant’s claims; however, the district court made no specific

findings regarding ineffective assistance of counsel. The extent of the district court’s

comments regarding defense counsel’s effectiveness was as follows: “[Defendant], you

are not entitled to a change in lawyers. There’s nothing inappropriate that [defense

counsel] did in this matter. He’s represented you diligently and secured for you an

excellent plea agreement.” Rec. vol. 2, at 45. During the sentencing hearing, defense

counsel made an oral motion to withdraw as counsel based on Defendant’s allegations of

ineffective assistance of counsel. The district court’s comments were brief: “In the

absence of [Defendant’s] willingness to cooperate and provide substantial assistance,

which would have opened the door on her behalf [to a sentence below the statutory

minimum], I suspect that counsel’s work was as good as could be anticipated.” Id. at 56.

This record is insufficiently developed to afford adequate appellate review, and we

therefore do not reach the merits of the ineffective assistance of counsel claim.

Therefore, the Government’s motion to enforce the plea agreement is GRANTED and

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this appeal is DISMISSED.

Entered for the Court,

Bobby R. Baldock
United States Circuit Judge

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