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

                            FOR THE TENTH CIRCUIT                        June 24, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 14-3043
                                                (D.C. No. 6:13-CR-10113-EFM-1)
MARK ANTHONY HANKERSON,                                     (D. Kan.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.


      Mark Anthony Hankerson entered a guilty plea to interference with commerce

by means of robbery and brandishing a firearm during and in relation to a crime of

violence. He was sentenced to 120 months’ imprisonment. Mr. Hankerson’s plea

agreement contained a waiver of his right to appeal or collaterally attack his

convictions and sentence.


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      In spite of this waiver, Mr. Hankerson filed a pro se notice of appeal in which

he states that he wants to appeal his sentence of 120 months. The government moved

to enforce the appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (per curiam). Mr. Hankerson’s attorney filed a response in which

she invokes Anders v. California, 386 U.S. 738 (1967), and agrees with the

government that the motion to enforce should be granted and the appeal dismissed.

Mr. Hankerson was then given the opportunity to file a pro se response.

      In his pro se response, Mr. Hankerson asserts that his guilty plea was not

knowing and voluntary as a result of ineffective assistance of counsel. He further

contends that he reserved his right to appeal based on ineffective assistance of

counsel. His plea agreement states that “the parties understand that the defendant in

no way waives any subsequent claims with regards to ineffective assistance of

counsel or prosecutorial misconduct.” Mot. to Enforce, Attach. C, at 5 ¶ 9.

      We have held “that a plea agreement waiver of postconviction rights does not

waive the right to bring a [28 U.S.C.] § 2255 petition based on ineffective assistance

of counsel claims challenging the validity of the plea or waiver.” United States v.

Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). But we have also held that

“a defendant must generally raise claims of ineffective counsel in a collateral

proceeding, not on direct review. This rule applies even where a defendant seeks to

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

States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (internal citation omitted).


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Accordingly, Mr. Hankerson’s potential claim for ineffective assistance of counsel

does not provide a basis for denying the government’s motion to enforce the appeal

waiver in this matter.

      We grant the motion to enforce the appeal waiver and dismiss the appeal. This

dismissal does not affect Mr. Hankerson’s ability to file a 28 U.S.C. § 2255 motion

asserting a claim for ineffective assistance of counsel in connection with his guilty

plea or appeal waiver.

                                                Entered for the Court
                                                Per Curiam




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