                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2729
                                   ___________

Kenith Chesney,                         *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Arkansas.
United States of America,               *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: January 16, 2004

                                  Filed: May 21, 2004
                                   ___________

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit
      Judges.
                         ___________

COLLOTON, Circuit Judge.

      Kenith Chesney appeals the district court's1 denial of his motion to vacate his
sentence, filed pursuant to 28 U.S.C. § 2255. The district court held that Chesney
made a knowing and voluntary waiver of his right to file such a motion, and thus
dismissed the case. Although circuit precedent requires us to evaluate Chesney's



      1
       The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
claim of ineffective assistance of counsel on the merits, we ultimately conclude that
Chesney's waiver was knowing and voluntary. Accordingly, we affirm.

                                           I.

       Chesney was convicted by a jury on one count of conspiracy to distribute a
controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior to
sentencing, Chesney entered into a stipulation with the government, wherein he
agreed to waive the right to appeal his conviction and sentence, along with "any and
all post sentencing pleadings." In exchange, the government agreed to advocate a
total offense level of 36 under the United States Sentencing Guidelines, which
resulted in a sentencing range of 188 to 235 months. The government also agreed to
recommend a sentence at the low end of that range. During the sentencing hearing,
the district court noted that under the stipulation, Chesney waived the right to appeal
his conviction and sentence, and Chesney's counsel expressed agreement. The
district court accepted the stipulated offense level, and sentenced Chesney to 188
months imprisonment.

       Chesney subsequently moved to vacate his sentence under 28 U.S.C. § 2255,
claiming that he was denied effective assistance of counsel, and that the district court
failed adequately to inform Chesney of the ramifications of his waiver. Chesney
argued that his trial counsel erred both in failing to communicate a pre-trial offer of
a plea agreement that would have carried a maximum punishment of 60 months
imprisonment, and in failing to ensure that Chesney fully understood the
consequences of the sentencing stipulation. The district court denied Chesney's
motion, finding that he had knowingly and voluntarily waived his right to file "any
and all post sentencing pleadings," including motions brought pursuant to 28 U.S.C.
§ 2255.




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                                          II.

       On appeal, Chesney argues that the Due Process Clause required the district
court to advise him of the specific rights that he would waive by agreeing to forego
"any and all post sentencing pleadings." He asserts that in the absence of a colloquy
comparable to that conducted under Federal Rule of Criminal Procedure 11 with
respect to pleas of guilty, his purported waiver of the right to bring claims in a post-
conviction motion was not "knowing and voluntary." As a result, he contends, the
waiver should not be enforced.

       Setting aside for a moment Chesney's claim of ineffective assistance of
counsel, we reject Chesney's broad claim that the district court was required at the
sentencing hearing to engage in a detailed colloquy regarding the potential rights and
claims that he would forego by waiving his right to bring "any and all post sentencing
pleadings." In United States v. Michelson, 141 F.3d 867, 871 (8th Cir. 1998), we
rejected a similar claim from a defendant who argued that his waiver of a right to
appeal was not knowing and voluntary because "the magistrate judge did not engage
him in an explicit discussion regarding his waiver of appellate rights during the Rule
11 colloquy at his plea hearing." While we allowed that "it might have been
preferable for the court to conduct a colloquy," we held that "such a dialogue is not
a prerequisite for a valid waiver of the right to appeal." Id.

       We see no reason why the rule should be different with respect to a waiver of
the right to file a post-conviction motion, as opposed to a direct appeal. As a
practical matter, we do not believe it would be possible for a district judge to develop
a litany of every post-sentencing pleading that might occur to a defendant during a
15-year term of imprisonment, and Chesney provides no sound means to identify
which potential pleadings or claims must be cited in his proposed colloquy. The
stipulation signed by Chesney and his counsel, however, was explicit regarding his
waiver of the right to file "any and all post sentencing pleadings." Simplicity has

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virtue. Any reasonable person in Chesney's position should have understood the
waiver to mean that the sentencing hearing would be final: the sentence imposed
would be the sentence served. The court and Chesney's counsel acknowledged the
stipulation orally at the hearing, and Chesney made no inquiry or comment about the
waiver when he addressed the court. See United States v. Washington, 198 F.3d 721,
724 (8th Cir. 1999) ("A fundamental choice over which the defendant has the ultimate
decision can be knowingly and voluntarily waived if, by his or her silence, the
defendant apparently acquiesces to the waiver."). We believe that the explicit
language of the written waiver, which was signed by Chesney, and the court's oral
confirmation of the provision in Chesney's presence are sufficient to demonstrate that
the waiver of the general right to file post-sentencing pleadings was knowing and
voluntary.

       Chesney's specific claim that his waiver was the result of ineffective assistance
of counsel is more complicated. A panel of this court has held that "[a] defendant's
plea agreement waiver of the right to seek section 2255 post-conviction relief does
not waive defendant's right to argue, pursuant to that section, that the decision to enter
into the plea was not knowing and voluntary because it was the result of ineffective
assistance of counsel." DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000);
see also United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc).
According to DeRoo, "'[j]ustice dictates that a claim of ineffective assistance of
counsel in connection with the negotiation of a cooperation agreement cannot be
barred by the agreement itself -- the very product of the alleged ineffectiveness.'"
DeRoo, 223 F.3d at 924 (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th
Cir. 1999)). The DeRoo court thus held that the district court "should have addressed
the substance of DeRoo's motion and determined whether the alleged ineffective
assistance of counsel made DeRoo's waiver unknowing and involuntary." Id. at 924.
In this case, Chesney argues that his trial counsel was ineffective in recommending
the waiver of all post-sentencing pleadings, because (1) Chesney allegedly did not
benefit from the sentencing stipulation in which the waiver was included, and (2) the

                                           -4-
waiver precluded Chesney from attacking trial counsel's alleged ineffectiveness in
failing to communicate a generous plea offer to Chesney prior to trial.

        We are bound to follow DeRoo with respect to the waiver in this case, but we
hesitate to read that decision broadly. The right to "effective assistance of counsel,"
after all, arises from the Sixth Amendment, and a criminal defendant may waive the
rights guaranteed by the Sixth Amendment. Johnson v. Zerbst, 304 U.S. 458, 468-69
(1938). If a criminal defendant is able to negotiate substantial concessions from the
prosecution, but only on the condition that the defendant waive a potential future
claim of ineffective assistance of counsel, does "justice" really dictate that this court
refuse to enforce such an agreement in all circumstances? If the government cannot
obtain the benefit of avoiding collateral litigation under section 2255, then the
government may not be willing to offer certain concessions, and a defendant may be
unable to secure the bargain most favorable to his interests. To require that
conclusion would seem, in Justice Frankfurter's famous words, "to imprison a man
in his privileges and call it the Constitution." Adams v. United States ex rel. McCann,
317 U.S. 269, 280 (1942).

       Perhaps, therefore, DeRoo should be read only to impose the sort of procedural
safeguards that Chesney seeks before a court may enforce a waiver of a claim of
ineffective assistance of counsel that relates to the negotiation of the waiver. On that
view, a general waiver of the right to bring post-conviction or post-sentencing claims
under section 2255 would not be sufficient to waive such a claim of ineffective
assistance of counsel, but an explicit waiver of the Sixth Amendment right to counsel
-- which explained the concept of ineffective assistance of counsel and the basic
ramifications of waiving a claim that ineffectiveness influenced the signing of the
waiver -- would be considered knowing and voluntary. Cf. Faretta v. California, 422
U.S. 806, 835-36 (1975). Under the law of this circuit, so long as such a waiver of
Sixth Amendment rights did not result in a "miscarriage of justice," Andis, 333 F.3d
at 891-92, the waiver would be enforceable.

                                          -5-
       Even that refinement of DeRoo, however, would not permit us to affirm the
district court's enforcement of the waiver in this case without considering the claim
of ineffective assistance of counsel on the merits. Chesney's waiver did not
specifically mention the Sixth Amendment or the right to effective assistance of
counsel, and the colloquy with the court at the time of sentencing was no more
specific than the general written waiver. In light of DeRoo, therefore, we conclude
that Chesney did not waive the right to argue that his waiver of the right to file "any
and all post sentencing pleadings" was the result of ineffective assistance of counsel,
and thus not a "knowing and voluntary" waiver.

                                           III.

       Despite the need for further inquiry, we need not remand the case to the district
court if the record on appeal is sufficient to permit meaningful review of Chesney's
claim of ineffective assistance of counsel. DeRoo, 223 F.3d at 924. We believe that
the record in this case is adequate to the task.

       The district court did consider and reject on the merits Chesney's allegation that
trial counsel was ineffective because he failed to communicate an offer of a plea
agreement under which Chesney's maximum punishment would have been five years
imprisonment. The court noted that contrary to Chesney's assertion that he would
have pleaded guilty under the proposed agreement, "Chesney took the stand in his
defense and testified extensively that he was not guilty of the offense charged."
Chesney now argues that his denial of guilt under oath at trial does not foreclose the
possibility that he would have admitted guilt under oath at a guilty plea hearing if he
had known about the favorable terms of the proposed plea agreement.2



      2
       After the district court denied Chesney's motion to vacate his sentence,
Chesney's trial counsel filed in the district court an "offer of proof in event of appeal."
In this document, Chesney's trial counsel represented that he communicated the
government's plea offers to Chesney on two occasions prior to trial, and that Chesney
rejected the offers by stating that he was not guilty.
                                            -6-
       We are confident that the district court was aware of the theoretical possibility
that a defendant might plead guilty under a set of favorable terms, but proceed to trial
and deny guilt under oath if those favorable terms were not available. The question
before the district court, however, was whether Chesney had made a sufficient
showing of unprofessional conduct by trial counsel and resulting prejudice to warrant
an evidentiary hearing. We note that Chesney presented no affidavit with his post-
conviction motion, and even the motion to vacate does not assert directly that
Chesney would have pleaded guilty in exchange for a sentence of five years
imprisonment. We interpret the district court's ruling to mean that having personally
observed Chesney's extensive trial testimony, in which he adamantly denied guilt, the
court did not believe that Chesney would have pleaded guilty under the government's
pre-trial offer, even assuming he won the inevitable swearing contest with his trial
counsel about whether the plea offer was communicated. We find no error in the
district court's conclusion. See Sanders v. United States, 341 F.3d 720, 723 (8th Cir.
2003); Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).

       We also conclude that the record is sufficient to demonstrate that counsel was
not ineffective in recommending the sentencing stipulation. Chesney received at least
three benefits from the stipulation. First, the government agreed to a base offense
level of 36, despite sufficient evidence of drug quantity in the trial record to support
a good faith argument that the base offense level should have been 38. See USSG
§ 2D1.1(c). (Indeed, counsel for the United States represented that the probation
office initially recommended a base offense level of 38 in its draft presentence
report). Although the district court ultimately stated that it agreed with the stipulated
level of 36 based on the quantity of drugs, this comment does not eliminate the
possibility that after an adversarial presentation, the court might have been persuaded
to arrive at the higher offense level. The stipulation avoided that risk, and the
decision to recommend a certain outcome in the face of such risk is well within the
range of competence demanded of attorneys in criminal cases. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).

                                          -7-
      Second, the stipulation avoided a two-level specific offense characteristic for
possession of a dangerous weapon. See USSG § 2D1.1(b)(1). One of Chesney's co-
conspirators testified at trial that Chesney admitted possessing a firearm during a drug
transaction. If credited, this testimony would have supported a two-level adjustment.
(Again, counsel for the United States represented that the probation office initially
recommended this adjustment). In the stipulation negotiated by Chesney's counsel,
however, the government agreed not to seek the enhancement. The agreement thus
eliminated the risk of a finding that could have increased Chesney's sentence by
approximately four years.

       Third, the stipulation avoided a two-level adjustment for obstruction of justice
based upon Chesney's testimony at trial. See USSG § 3C1.1, comment. (n.4(b)).
Despite overwhelming evidence of his participation in the charged drug conspiracy,
Chesney denied under oath that he committed the offense. In light of that record, it
is surprising that an adjustment for obstruction of justice was not at least a subject of
discussion in the presentence report or at the sentencing hearing. In any event,
Chesney's counsel negotiated a stipulation that avoided the risk that he would receive
a two-level enhancement for perjury at trial, and that result is further evidence of
counsel's effectiveness.

      We conclude that Chesney has not established that his waiver of the right to file
"any and all post sentencing pleadings" was the product of ineffective assistance of
counsel. Accordingly, we agree with the district court that the waiver was knowing
and voluntary, and we affirm the judgment of the district court.
                       ______________________________




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