                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 19, 2006
                             No. 05-12148                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket Nos. 04-01145-CV-J-20-MMH
                          and 02-00243-CR-J-2

LUCIOUS LATTIMORE,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (June 19, 2006)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
      Represented by counsel, Lucious Lattimore, a federal prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate. We apply the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214 (1996), because he filed his § 2255 motion after the act’s

effective date. We granted a Certificate of Appealability (“COA”) as to the

following issue:

      Whether the district court erred by concluding that Lattimore
      knowingly and voluntarily waived his right to raise an
      ineffective-assistance-of-counsel claim in a 28 U.S.C. § 2255 motion
      in light of the magistrate judge’s (1) failure to inform Lattimore at the
      plea colloquy that he was waiving his right to collaterally attack his
      sentence and (2) statement at the colloquy that Lattimore was not
      waiving his right to the effective assistance of counsel by entering into
      a guilty plea.

As we discuss in detail below, we find that Lattimore did not knowingly and

voluntarily waive his right to claim ineffective assistance of counsel in a § 2255

motion. Accordingly, we vacate the district court’s denial of his § 2255 habeas

motion, and remand for consideration of the merits of his claim.

      Lattimore’s plea agreement contained an appeal waiver wherein he waived

the right to challenge his sentence “directly or collaterally, on any ground except

for an upward departure by the sentencing judge or a sentence above the statutory

maximum or a sentence in violation of the law apart from the sentencing

guidelines, or the applicability of the ‘safety valve’ provisions of 18 U.S.C. §

                                           2
3553(f) and U.S.S.G. §5C1.2.”1 On appeal, Lattimore argues that because the

magistrate judge did not specifically discuss his sentence appeal waiver with him at

his change of plea hearing, his waiver was not knowing and voluntary. He

contends that the district court erred when it (1) expressly advised him that he did

not give up his right to effective assistance of counsel by pleading guilty, and

(2) failed to advise him that he was giving up the right to collaterally attack his

sentence. Lattimore further argues that it is not otherwise “manifestly clear” from

the record that he understood the full significance of the waiver, and that the

requirements of United States v. Bushert, 997 F.2d 1343, 1351-52 (11th Cir. 1993),

were not met. Finally, he asserts that, even if the appeal waiver was valid, it did

not waive his § 2255 challenge concerning ineffective assistance of counsel.

       Whether an appeal waiver is enforceable is a question of law that we review

de novo. Bushert, 997 F.2d at 1352. We will enforce a sentence appeal waiver if

the government demonstrates either that “(1) the district court specifically

questioned the defendant concerning the sentence appeal waiver during the Rule 11

colloquy, or (2) it is manifestly clear from the record that the defendant otherwise


       1
           In a case involving a sentence-appeal waiver nearly identical to Lattimore’s, we held
that the petitioner had waived his right to appeal based on a claim of ineffective assistance of
counsel relating to his sentencing. See Williams v. United States, 396 F.3d 1340, 1341 (11th
Cir.), cert. denied, __ U.S. __, 126 S. Ct. 246, 163 L. Ed. 2d 226 (2005). However, we did not
reach the issue of whether the waiver was knowing and voluntary, id. at 1341 n.1, which is the
subject of the present appeal.

                                                3
understood the full significance of the waiver.” Id. at 1351. For instance, during

the plea colloquy, it is insufficient for the district court to merely inform the

defendant that he may appeal “under some circumstances.” Id. at 1352-53. Rather,

the court must explain to the defendant, with specificity, the nature and extent of

the appeal waiver. See United States v. Buchanan, 131 F.3d 1005, 1008 (11th

Cir. 1997) (per curiam).

       Here, the magistrate judge, during the Rule 11 colloquy, explained to

Lattimore that he had the right to plead not guilty, the right to a speedy and public

trial, the right to a jury trial, and “the right to the effective assistance of a lawyer at

every stage of the proceedings.” The magistrate judge further explained that by

pleading guilty, Lattimore waived all of these rights except for the right to effective

assistance of counsel.2 The magistrate judge also examined the plea agreement and

explained that Lattimore had “the right to appeal any sentence imposed by the

District Judge on any ground.” The magistrate judge further explained that under

the plea agreement Lattimore was waiving the right to appeal his sentence on any

ground except five grounds that the magistrate judge expressly enumerated. The

magistrate judge continued, “But except in those five circumstances . . . ,



       2
          The magistrate judge later explained that the defendant had other trial rights (i.e., the
right to confront witnesses, and the right to testify on his own behalf), and reiterated that those
rights “[would] all go away” except for the right to counsel.

                                                  4
[Lattimore] would not be allowed to appeal.” When asked if he understood,

Lattimore responded affirmatively.

      Viewing the magistrate judge’s statements as a whole, Lattimore reasonably

could have understood that he reserved his right to raise a claim of ineffective

assistance of counsel at sentencing, in a § 2255 motion. The magistrate judge

stated and reiterated that, by pleading guilty, Lattimore was not waiving his right to

the effective assistance of counsel throughout the proceedings, including

sentencing. Although the magistrate judge, in explaining the sentence appeal

waiver, stated that Lattimore had only five bases under which he could appeal his

sentence, this was not enough to overcome the impression created by the

magistrate judge’s earlier statements regarding Lattimore’s right to effective

assistance of counsel throughout the criminal proceedings. Given the lack of

clarity, we are not satisfied that Lattimore knowingly and voluntarily waived his

right to claim that his counsel rendered ineffective assistance during sentencing.

See Bushert, 997 F.2d at 1352-53 (finding a waiver unenforceable given the district

court’s confusing language). Additionally, a thorough review of the record fails to

show that Lattimore “otherwise understood the full significance of the waiver.”

See id. at 1351.

      Accordingly, we vacate the district court’s denial of Lattimore’s § 2255



                                          5
motion, and remand for consideration of the merits of Lattimore’s ineffective

assistance of counsel claim.

      VACATED and REMANDED.




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