                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3519
                         ___________________________

                               Fred Miles Thompson

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                      for the District of North Dakota - Fargo
                                   ____________

                             Submitted: May 12, 2017
                             Filed: September 19, 2017
                                  ____________

Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

      Fred Miles Thompson pleaded guilty, pursuant to a written plea agreement, to
conspiracy to possess with intent to distribute methamphetamine and use of a firearm
in connection with a drug trafficking crime. The district court1 sentenced Thompson


      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
to a term of 480 months’ imprisonment on the drug offense, followed by a
consecutive life sentence on the firearm offense. On direct appeal, we affirmed.
Thompson then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
The district court2 denied the motion, but granted a certificate of appealability.

                                   I. Background

       The facts underlying Thompson’s conviction are set forth in our prior opinion,
United States v. Thompson, 770 F.3d 689 (8th Cir. 2014). We repeat those facts here
as relevant for the instant appeal. The day before his trial was to begin, Thompson
notified the court that he intended to plead guilty. The proposed plea agreement was
provided to the court for review. As pertinent here, the proposed agreement set forth
the mandatory statutory minimum and maximum penalties for both counts to which
Thompson agreed to plead guilty, and noted that the court would impose “a sentence
sufficient to comply with the purposes set forth in the Sentencing Reform
Act . . . consider[ing] factors set forth in 18 U.S.C. § 3553(a)” after consulting and
taking into account the sentencing guidelines. The agreement stated that it was
binding on the United States Attorney for the District of North Dakota, but not on the
court or the probation office, and that the court could “depart from the applicable
guidelines range if the Court, on the record, states factors not contemplated by the
Sentencing Guidelines Commission to justify the departure.” The only sentencing
recommendation the government agreed to make was for a two-level downward
adjustment for acceptance of responsibility; all other sentencing issues were left open.
The written plea agreement contained an integration clause providing that “no threats,




      2
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

                                          -2-
promises, or representations exist beyond the terms of this plea agreement” and that
“[t]here are no additional terms to the Plea Agreement.”3

       The following morning, Thompson told the court he had changed his mind and
that he intended to go to trial. The district court questioned Thompson about his
decision. Thompson persisted in his stance that he wanted to go to trial, and his
counsel requested a recess. Following a fifteen-minute recess, the parties reconvened,
and Thompson informed the court he had decided to plead guilty. He signed the plea
agreement in which he “acknowledge[d] reading and understanding all provisions of
the Plea Agreement” and that he had discussed and reviewed the agreement with his
attorney.

      The change-of-plea hearing followed immediately. At the hearing, the court
and Thompson had the following colloquy:

      THE COURT: Okay. And you understand that by pleading guilty to
      Count Two there is a mandatory minimum seven-year sentence that will
      be consecutive to the mandatory minimum five-year sentence on Count
      One?

      THE DEFENDANT: Yes.

      THE COURT: And that will be the least amount that the Court could
      sentence you. The Court could still sentence you to a higher amount but
      the least that they could sentence you to is that 12 years. Do you
      understand that?

      THE DEFENDANT: Yes.



      3
        This part of the integration clause is contained in a plea agreement supplement
that is referenced in the plea agreement and that Thompson also signed and dated
prior to pleading guilty.

                                         -3-
      THE COURT: Yeah, because what I’m saying is there’s no way I could
      go below that and not violate the law, all right? Do you understand?

      THE DEFENDANT: Yes.

Thompson, 770 F.3d at 692. On appeal, Thompson argued that the district court
violated Federal Rule of Criminal Procedure 11 in part by improperly participating
in plea negotiations. We affirmed, concluding Thompson had failed to show a
reasonable probability that, but for the purported errors, he would not have entered
a plea of guilty.

       Thompson then filed the instant motion pursuant to § 2255, asserting the
district court improperly participated in plea negotiations; he was effectively
promised a twelve-year sentence; and he received ineffective assistance of counsel.
With the motion, he submitted an affidavit, asserting in part as follows:4

      During the recess my attorney told me that it was his advice that I plead
      guilty. I wanted to go to trial. I specifically told the Judge twice that I
      wanted to go to trial. [My attorney] then told me that the Judge would
      most likely give me the 12 years if I pled guilty. [My attorney] went on
      to say that he knows Judge Erickson and that “he is a good judge.” [My
      attorney] then told me that Judge Erickson can’t directly say that he
      would give me the 12 years if I pled guilty, but indicated that that is
      what the Judge was saying.

      Based on Judge Erickson’s statements to me in open court . . . indicating
      that he would sentence me to 12 years if I pled guilty, and further, based
      on my attorney’s statements to me during the recess that the Judge
      would sentence me to 12 years if I pled guilty, and that I should accept
      the prosecutor’s plea offer and plead guilty, I took my attorney’s advice
      and pled guilty. My attorney used the Judge’s statements to convince

      4
      In its brief, the government assumes for purposes of this appeal that the facts
in Thompson’s affidavit are true. We do the same.

                                         -4-
      me to plead guilty. Had Judge Erickson not involved himself in the plea
      negotiations and made the statements that he made to me . . . I would not
      have pled guilty, and would have insisted on exercising my right to jury
      trial, as I twice told Judge Erickson . . . that going to trial is what I
      wanted to do. Also, [my attorney] never informed me of the law
      surrounding my case, including sentencing and that the Judge was not
      suppose[d] to involve himself in the plea negotiations.

The district court denied the motion in its entirety but granted a certificate of
appealability. Thompson appeals.

                                    II. Discussion

       As an initial matter, we address the government’s assertion that we lack
jurisdiction over this appeal. After Thompson appealed the denial of his § 2255
motion, the government moved our court to dismiss the appeal as untimely under
Federal Rule of Appellate Procedure 4(a). An administrative panel of our court
denied the motion. In its merits brief, the government renews its argument that we
lack jurisdiction because Thompson failed to timely perfect his appeal.

       We have an ongoing obligation to consider our own jurisdiction, but “an
administrative panel’s denial of a motion to dismiss for lack of jurisdiction typically
is the law of the case, ordinarily to be adhered to in the absence of clear error or
manifest injustice.” Williams v. Emp’rs Mut. Cas. Co., 845 F.3d 891, 897 (8th Cir.
2017) (quotations omitted). “For the law of the case doctrine to have any application,
however, the prior administrative panel must have actually decided the specific
jurisdictional issue.” Nyffeler Constr., Inc. v. Sec’y of Labor, 760 F.3d 837, 841–42
(8th Cir. 2014). Here, the specific jurisdictional issue presented to the administrative
panel and to us is the same: whether Thompson’s notice of appeal was timely. The
record on this issue also remains the same. Seeing no “clear error or manifest
injustice,” we proceed to the merits of Thompson’s appeal. We review de novo a


                                          -5-
district court’s denial of a motion to vacate, set aside, or correct sentence. United
States v. Hernandez, 436 F.3d 851, 854–55 (8th Cir. 2006). We review the court’s
underlying factual findings for clear error. Id. at 855.

        Thompson’s first argument5 is that the district court violated Rule 11 by
improperly participating in plea negotiations. Thompson made this same argument
in his direct appeal. See Thompson, 770 F.3d at 694–95. Though we acknowledged
that “[w]hether the district court’s comments constituted improper participation in
plea negotiations is a close question,” we nonetheless concluded that the court’s
comments “were isolated in nature, and an after-the-fact review of the written
transcript of the colloquy between the court and Thompson may result in a tendency
to give those comments more attention and weight than they received at the time.”
Id. at 695–96. We further decided that even “[a]ssuming for the sake of analysis that
the district court’s comments constituted improper participation in plea negotiations
in violation of Rule 11,” Thompson had failed to show “a reasonable probability that,
but for the Rule 11 errors, he would not have pleaded guilty.” Id. at 696, 698.
“[C]laims which were raised and decided on direct appeal cannot be relitigated on a
motion to vacate pursuant to 28 U.S.C. § 2255.” Davis v. United States, 673 F.3d


      5
       Thompson raises three new issues on appeal. First, he asserts that the district
court’s promise of a twelve-year sentence and the government’s agreement to that
promise converted the plea agreement into a binding plea agreement that the
government then breached. Next, Thompson asserts he did not enter the plea
agreement knowingly and voluntarily because (1) its terms and conditions were not
explained to him in a way that he understood, and (2) it was not explained to him that
the terms of the plea agreement negated the oral promise—that is, a twelve-year
sentence—that induced him to plead guilty. Finally, he argues his lawyer was
ineffective for failing to object at the sentencing hearing to the sentence imposed.
Because Thompson did not raise these issues with the district court in his § 2255
proceeding, they are barred. See Abdullah v. United States, 240 F.3d 683, 685 (8th
Cir. 2001) (“Generally, a habeas claim cannot be raised by a petitioner for the first
time on appeal.”).

                                         -6-
849, 852 (8th Cir. 2012) (quoting Bear Stops v. United States, 339 F.3d 777, 780 (8th
Cir. 2003)). Because this issue has been “raised and decided,” it cannot be relitigated
in these proceedings, and we decline to revisit our prior decision.

       Next, Thompson argues the district court’s “indication” that it would impose
a twelve-year sentence, coupled with the government’s failure to object, amounted
to a “promise that he would receive twelve years’ imprisonment.” Thompson
characterizes this set of circumstances as an oral promise of what his sentence would
be. “[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled” because the government’s breach of such a promise
violates due process. United States v. Raifsnider, 663 F.3d 1004, 1009 (8th Cir.
2011) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). Thompson bears
the burden of showing that he was promised a twelve-year sentence and that the
promise of the twelve-year sentence “was part of the ‘inducement or consideration’
offered by the government in exchange for his plea.” Id.

       Thompson concedes the plea agreement he signed prior to pleading guilty does
not guarantee a twelve-year sentence, but contends the government’s silence in the
face of the district court’s comments at the plea hearing amounted to an oral
amendment of the written plea agreement. Because plea agreements are contractual
in nature, we interpret them according to general contract principles. United States
v. Leach, 562 F.3d 930, 935 (8th Cir. 2009). “When an alleged oral promise is made
prior to, or in conjunction with, a plea agreement, such promise cannot serve as an
inducement to plead guilty when the defendant’s plea agreement and plea-hearing
representations negate such a claim.” Id. (quotation omitted). The written plea
agreement did not include a stipulation to a twelve-year sentence, and no one at the
plea hearing promised Thompson he would receive a particular sentence. When
asked by the court whether he understood that “[t]he court could still sentence you to
a higher amount but the least that they could sentence you to is that 12 years,”

                                         -7-
Thompson responded, “[y]es.” Thompson, 770 F.3d at 692. “[A] defendant’s
representations during the plea-taking carry a strong presumption of verity and pose
a formidable barrier in any subsequent collateral proceedings.” Nguyen v. United
States, 114 F.3d 699, 703 (8th Cir. 1997) (quotation omitted). Thompson has not
shown that the government’s silence amounted to a promise that induced him to plead
guilty.6

       Finally, Thompson claims that his attorney provided ineffective assistance of
counsel, both by advising him that the district court would “most likely give [him] the
12 years if [he] pled guilty” without explaining that the district court was not allowed
to participate in plea negotiations, and by not objecting to the court’s improper
participation in those negotiations. We review ineffective assistance of counsel
claims arising from plea negotiations under the two-part test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). United States v. Regenos, 405 F.3d 691, 693
(8th Cir. 2005). “To demonstrate that counsel was constitutionally ineffective, a
defendant must show that counsel’s representation ‘fell below an objective standard
of reasonableness’ and that he was prejudiced as a result.” Lee v. United States, 137
S. Ct. 1958, 1964 (2017) (quoting Strickland, 466 U.S. at 688). “[W]hen a defendant
claims that his counsel’s deficient performance deprived him of a trial by causing him


      6
         The plea agreement also contains an integration clause. “[A]n integration
clause normally prevents a criminal defendant, who has entered into a plea agreement,
from asserting that the government made oral promises to him not contained in the
plea agreement itself.” Leach, 562 F.3d at 935–36 (quotation omitted). Thompson
acknowledges the integration clause but contends that “[a]n integration clause will
not . . . preclude proof of oral promises when both parties concede that the written
plea agreement does not contain all of the Government’s promises that induced the
defendant to plead guilty.” See Raifsnider, 663 F.3d at 1010 (concluding oral
promise was binding despite integration clause in plea agreement because both parties
agreed they orally amended the written agreement). Here, however, the government
does not concede that the written plea agreement failed to list all of the government’s
promises that induced Thompson to plead guilty.

                                          -8-
to accept a plea, the defendant can show prejudice by demonstrating a ‘reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.’” Id. at 1965 (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)). But, “[c]ourts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded but for his attorney’s
deficiencies. Judges should instead look to contemporaneous evidence to substantiate
a defendant’s expressed preferences.” Id. at 1967.

       In his affidavit, Thompson asserts that but for his counsel’s deficiencies, he
would not have pleaded guilty and would have insisted on taking his case to trial.
Assuming without deciding that counsel’s advice to plead guilty based on the
likelihood of a twelve-year sentence amounts to deficient performance, we conclude
Thompson has failed to show the required prejudice. With the benefit of hindsight,
Thompson’s statement that he would have not pleaded guilty under these
circumstances has a ring of truth, especially in light of the sentence he received. But
we must “look to contemporaneous evidence to substantiate” that statement, and the
evidence we find is substantially to the contrary. At the change of plea hearing,
which immediately followed the recess where counsel provided allegedly deficient
advice, the district court discussed the terms of the plea agreement with Thompson.
The court explicitly told Thompson that the minimum sentence he could receive was
twelve years, but that he could still be sentenced to a longer term. Thompson said he
understood. When asked, Thompson also agreed that the court did not force him to
enter the plea agreement and that he was doing so of his “own free will.” See
Thompson, 770 F.3d at 697–98 (recognizing “Thompson told the district court three
times he wanted to go to trial,” but also noting Thompson’s failures to object to the
recommended sentencing range in presentence report or his status as a career
offender; to move to withdraw his guilty plea; to indicate at sentencing that he
anticipated a particular sentence; or to raise at the district court any concerns about
possible Rule 11 errors).



                                         -9-
       Thompson’s affidavit offers little more than a “post hoc assertion” regarding
his decision to plead guilty. See Lee, 137 S. Ct. at 1967. It is void of any actions
Thompson took or statements he made, before, during, or after sentencing, that would
demonstrate a reasonable probability that he would not have pleaded guilty had his
lawyer not given the advice that he did. We again recognize that “Thompson
understandably hoped for a sentence of less than life imprisonment after pleading
guilty and waiving his right to trial.” Thompson, 770 F.3d at 698. But Thompson has
failed to point to sufficient contemporaneous evidence to support his post hoc
assertion that he would not have pleaded guilty absent his attorney’s advice. Without
such evidence, his ineffective assistance of counsel claims must fail.

                                 III. Conclusion

    For the reasons set forth above, we affirm the district court’s denial of
Thompson’s § 2255 motion.
                   ______________________________




                                        -10-
