                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                        No. 11-1254
                                       ____________

                              UNITED STATES OF AMERICA

                                              v.

                                  MICHAEL DELBRIDGE,
                                                   Appellant
                                       ____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-05-cr-00135-001)
                      District Judge: Honorable Arthur J. Schwab
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 23, 2012

     Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                                (Filed: November 15, 2012)
                                       ____________

                                OPINION OF THE COURT
                                     ____________

HARDIMAN, Circuit Judge.

       Michael Delbridge was sentenced to a term of 188 months’ incarceration and five

years of supervised release after pleading guilty to possession with intent to distribute 5

grams or more of cocaine base. At issue in this appeal is the District Court’s order
denying Delbridge’s motion to vacate sentence under 28 U.S.C. § 2255. We will affirm.

                                              I

       A grand jury in the Western District of Pennsylvania charged Delbridge with two

counts of possession with intent to distribute 5 grams or more of cocaine base (Count I

and Count III) and one count of possession with intent to distribute less than 5 grams of

cocaine base (Count II). Following the indictment, Delbridge entered into a written plea

agreement with the Government. He pleaded guilty to Count III and waived his rights to

take a direct appeal, except in a few limited circumstances, or file a collateral proceeding

attacking his sentence. In return, the Government moved to dismiss Counts I and II.

       The District Court conducted a thorough plea colloquy, during which it explained

the maximum sentence that Delbridge could receive under the applicable statute and the

Guidelines range that likely applied based on a preliminary presentence report. 1 The

District Court also explained that it was not bound by the advisory Guidelines range in

determining Delbridge’s sentence. Delbridge affirmed that he understood, and confirmed

under oath that no one had promised him a specific sentence, nor had anyone predicted

what his actual sentence would be.

       The District Court then reviewed the terms of the plea agreement with Delbridge


       1
         At the change of plea hearing, the prosecutor and Delbridge’s counsel agreed that
the applicable advisory Guidelines range was 188–235 months, based on Delbridge’s
offense level of 31 and criminal history category of VI. Delbridge’s offense level was
based, in part, on the determination that he was a career offender.
                                              2
and addressed the fact that Delbridge was giving up his right to collaterally attack the

judgment of sentence:

       [Q:] You are also giving up your right, any right you may have to file a
       motion to vacate sentence under Title 28, United States Code, Section 2255,
       for habeas corpus release [sic], and you’re also giving up other valuable
       rights to obtain collateral review of your sentence. Do you understand, sir?

       [A:] Yes, sir.

       The District Court sentenced Delbridge as a career offender under United States

Sentencing Guideline (USSG) § 4B1.1. The PSR showed that Delbridge had twice been

convicted of distribution of a controlled substance, once in 1992 and once in 1994, and

Delbridge had stipulated to being a career offender in his plea agreement. The District

Court sentenced Delbridge to a term of 188 months’ incarceration and five years of

supervised release, a sentence at the bottom of the advisory Guidelines range.

       Despite having waived his right to appellate review, Delbridge filed a direct appeal

on February 26, 2008. The Government filed a motion to enforce the appellate waiver,

and we granted that motion. Undeterred by either our decision dismissing his appeal or

by his express waiver of his right to collaterally attack the sentence, Delbridge filed a

motion to vacate his judgment of sentence under 28 U.S.C. § 2255 on November 29,

2010. Delbridge raised four claims in his motion:

       (1)    He was denied effective assistance of counsel because of his counsel’s
              erroneous advice concerning his offense level and his counsel’s failure
              to investigate;

       (2)    He was denied effective assistance of counsel because his attorney
                                              3
              failed to consult with him concerning a suppression hearing, and failed
              to follow through with that hearing;

       (3)    He was denied effective assistance of counsel because his attorney
              failed to investigate whether his prior convictions actually qualified him
              for sentencing as a career offender; and

       (4)    He was denied effective assistance of counsel at sentencing because his
              attorney did not litigate his career offender status.

       The District Court summarily denied the motion, explaining that Delbridge

“knowingly, voluntarily, and with full understanding of the consequences waived his right

to file any collateral challenge to his conviction or judgment of sentence, and he fails to

even allege, [much] less point to facts or circumstances in support, that enforcement of

the waiver in his case would work a miscarriage of justice.”

       On July 19, 2011, we granted a certificate of appealability on three issues: (1)

whether the District Court erred in enforcing the waiver provision sua sponte; (2) whether

the District Court erred in enforcing the waiver provision without providing Delbridge

with notice and opportunity to respond; and (3) whether the District Court erred in

concluding that the waiver provision barred all of Delbridge’s claims.

                                              II

       The District Court had jurisdiction to hear Delbridge’s claims under 28 U.S.C.

§ 2255. We have jurisdiction to decide this appeal pursuant to 28 U.S.C. §§ 1291 and

2253. Because the District Court decided Delbridge’s motion as a matter of law and

without a hearing, we review its decision de novo. See United States v. Eakman, 378

                                              4
F.3d 294, 297 (3d Cir. 2004).

                                             III

       The District Court dismissed Delbridge’s motion to vacate sua sponte, finding that

he had waived his right to collaterally attack the judgment of sentence. A district court

has the authority to dismiss a motion to vacate without ordering a response from the

Government or holding an evidentiary hearing when it is clear from both the motion and

the record that the movant is not entitled to relief. See 28 U.S.C. § 2255(b); Rule 4(b) of

the Rules Governing § 2255 Proceedings. Courts may raise and consider at least some

affirmative defenses to the prisoner’s claims without waiting for the Government to raise

those defenses itself. See, e.g., United States v. Bendolph, 409 F.3d 155, 165 & n.15 (3d

Cir. 2005) (statute of limitations). Here, both Delbridge and the Government assume that

the District Court had the power to raise the issue of Delbridge’s collateral proceedings

waiver without the Government first having asserted the waiver as an affirmative defense.

       As a matter of prudence, the District Court might have requested briefing from

Delbridge on the waiver issue. Because Delbridge’s waiver of his right to collateral

proceedings is an affirmative defense that can be raised—or waived—by the Government,

Delbridge was not required to include arguments in his motion to vacate regarding the

applicability of the waiver. 2 Based on only the record and the motion to vacate, it was


       2
        In United States v. Goodson, we explained that “a defendant is not obliged in his
opening brief to acknowledge the existence of an appellate waiver and/or to explain why
the waiver does not preclude appellate review of the substantive issue raised. Rather, it is
                                             5
theoretically possible that Delbridge had valid arguments regarding the waiver that could

not be discerned from the record. See United States v. Mabry, 536 F.3d 231, 238 & n.7

(3d Cir. 2008) (suggesting that a defendant’s claim that he was actually misled may

sometimes involve facts outside the record and require an evidentiary hearing); Bendolph,

409 F.3d at 165 n.15 (explaining that movants should be given an opportunity to respond

when the court raises a statute of limitations defense because some relevant facts might

not be apparent from the record and the petition alone).

       We need not dwell on this procedural issue, however, as we have determined—

based both on a review of the record in the District Court and on the arguments that

Delbridge now asserts in his appellate briefing—that the waiver does bar Delbridge’s

claims in this case. In assessing the validity of a waiver, courts must consider whether the

waiver was entered into knowingly and voluntarily, and whether its enforcement would

work a miscarriage of justice. Mabry, 536 F.3d at 237. Although Delbridge argues in his

appellate briefing that he did not enter into the plea agreement knowingly and voluntarily,

and that enforcement would work a miscarriage of justice, none of his specific claims

require additional factfinding, and the record demonstrates that his claims lack merit.


only after the government has invoked an appellate waiver as a bar to our review that a
defendant must raise a challenge to the waiver’s enforceability.” 544 F.3d 529, 536 (3d
Cir. 2008). Although Goodson involved a direct appeal, not a § 2255 motion, the same
reasoning applies here. Prisoners are not required to respond to all potential affirmative
defenses that the Government may raise in its responsive briefing. See Bendolph, 409
F.3d at 165 n.15 (3d Cir. 2005); Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002);
Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000).
                                             6
                                               A

       Delbridge contends that his plea colloquy was facially insufficient because the

District Court’s description of the waiver was not sufficiently detailed. He compares the

explanation of his waiver with the explanation provided in the plea colloquy in United

States v. Mabry. There, the prosecutor and the defense attorney described to Mabry, on

the record, the nature of a collateral proceeding. 536 F.3d at 234. Mabry was told by his

attorney that the right to collaterally attack a sentence is “a right after direct appeal for

you, for instance, to raise issues that may have to do with my ineffectiveness or other

collateral issues that could not have been raised on appeal.” Id. Delbridge argues that the

District Court should have defined “collateral proceedings” and explained specifically

that Delbridge would be waiving his right to challenge the effectiveness of his counsel.

       The transcript of the plea colloquy shows that Delbridge waived his right to

collaterally attack his sentence knowingly and voluntarily. Although the District Court

may not have described “collateral review” in the same depth as the defense counsel in

Mabry, it was not required to do so. Delbridge’s plea colloquy was conducted in

accordance with Rule 11(b)(1) of the Federal Rules of Criminal Procedure. He was

advised of the rights that he was waiving; the District Court stated that he was waiving

his right to file a motion to vacate his sentence “and other valuable rights to obtain

collateral review of your sentence,” and Delbridge confirmed under oath that he

understood what the Court was telling him. The District Court was not required to define

                                                7
further or characterize “collateral proceedings,” nor was it required to list the types of

claims that Delbridge would no longer be permitted to bring as a result of that waiver.

See, e.g., Mabry, 536 F.3d at 239 (holding that the sentencing court was not required to

specifically define “miscarriage of justice” or “advise a defendant of its practical

applications”).

                                              B

       Delbridge also argues that he was actually misled about the consequences of his

waiver, and that he is entitled to an evidentiary hearing to establish that claim. Delbridge

contends that “he was told by pre-plea counsel that he would be sentenced at an offense

level 26 if he pled guilty,” a claim that “goes to what Delbridge actually understood,

based on what he purports his pre-plea counsel told him during their private, attorney-

client communications, communications not a part of the record before the District

Court.”

       The plea colloquy transcript also belies this argument. Even if statements made by

Delbridge’s counsel led Delbridge to believe, at some point, that he was going to be

sentenced at an offense level of 26, multiple statements made to him during the plea

colloquy should have dispelled such a belief. At the plea colloquy, Delbridge was

advised of the maximum sentence that he could receive, he was informed of the

Guidelines range applicable to his case, and he was cautioned that the District Court was

not bound by the Guidelines in determining his sentence. Delbridge acknowledged that

                                              8
he understood, and confirmed that no promises had been made to him about his actual

sentence. These explanations render any allegedly inaccurate comment made by

Delbridge’s counsel irrelevant. See United States v. Shedrick, 493 F.3d 292, 299 (3d Cir.

2007) (“[D]efense counsel’s conjectures to his client about sentencing are irrelevant

where the written plea agreement and in-court guilty plea colloquy clearly establish the

defendant’s maximum potential exposure and the sentencing court’s discretion.”); United

States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged misrepresentations

that Mustafa’s former counsel may have made regarding sentencing calculations were

dispelled when Mustafa was informed in open court that there were no guarantees as to

sentence, and that the court could sentence him to the maximum.”).

                                               C

       Finally, Delbridge argues that we should decline to enforce his collateral

proceedings waiver because barring his claims would work a miscarriage of justice. In

considering whether enforcing a waiver would result in a miscarriage of justice, we take

into account “the clarity of the error, its gravity, its character (e.g., whether it concerns a

fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the

defendant, the impact of correcting the error on the government, and the extent to which

the defendant acquiesced in the result.” Mabry, 536 F.3d at 242–43 (quoting United

States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)). We apply the miscarriage of justice

exception “sparingly and without undue generosity.” United States v. Wilson, 429 F.3d

                                               9
455, 458 (3d Cir. 2005) (quoting Teeter, 257 F.3d at 26). The miscarriage of justice

exception does not apply here because the record establishes that none of Delbridge’s

substantive claims have merit.

                                              1

       Delbridge asserts two claims related to his status as a career offender: (1) counsel

should have investigated whether his prior convictions actually qualified him for

sentencing as a career offender; and (2) counsel should have challenged this status at his

sentencing hearing. Delbridge argues that he did not have counsel when he was

convicted of distribution of a controlled substance in 1993, and so that conviction should

not have been used in sentencing him as a career offender. He argues that if his counsel

had adequately investigated his criminal history, he would have discovered that his 1993

conviction was invalid, and he could have objected to its inclusion in the PSR.

       To establish that he was denied ineffective assistance, Delbridge must show that

his attorney’s performance “fell below an objective standard of reasonableness,” and that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). Although a conviction obtained in violation of the right to appointed

counsel should not count as a predicate conviction, 3 Delbridge cannot establish that his


       3
         See Burgett v. Texas, 389 U.S. 109, 115 (1967) (“To permit a conviction obtained
in violation of Gideon v. Wainwright to be used against a person either to support guilt or
enhance punishment for another offense is to erode the principle of that case.” (citation
                                              10
attorney’s failure to investigate or litigate that issue prejudiced him in any way because he

cannot show that he was denied representation in either of his prior distribution

convictions. Both of the sentencing orders from Delbridge’s Alabama convictions for

unlawful distribution note that Delbridge appeared “with his attorney.” Although it is

unclear which of these convictions Delbridge contests—since neither of the orders is

from 1993—it is sufficiently clear that he had counsel in both of the cases that were noted

in the PSR. 4 Thus, enforcing Delbridge’s waiver with respect to these claims does not

result in a miscarriage of justice.

                                             2

       Delbridge also claims that he was denied effective assistance because his pre-plea

counsel told him that he would be sentenced at an offense level of 26 if he pleaded guilty.

However, “we have long held that an erroneous sentencing prediction by counsel is not


omitted)); see also Curtis v. United States, 511 U.S. 485, 496 (1994) (noting the holding
in Burgett but declining to extend it to, inter alia, denial of effective assistance of
counsel, explaining that “failure to appoint counsel for an indigent defendant [is] a unique
constitutional defect”).
       4
         Delbridge does not challenge the accuracy of any of the Alabama sentencing
orders provided in the Government’s appendix. He argues instead: “This Court directed
the parties to address Delbridge’s 1993 conviction. From the government’s Supplemental
Appendix, it would appear that Delbridge had an attorney for all three of his Alabama
convictions. Of those three convictions, none actually occurred in 1993.” Since the only
mention of a 1993 conviction was in Delbridge’s motion to vacate—not in the PSR that
the District Court relied on—it is the 1992 and 1994 distribution convictions that are
relevant here. (The third conviction referenced by Delbridge, from 1996, was a
conviction for possession, not distribution, and so was not a part of the Court’s career
offender determination.)
                                             11
ineffective assistance of counsel where, as here, an adequate plea hearing was

conducted.” See Shedrick, 493 F.3d at 299; United States v. Jones, 336 F.3d 245, 254 (3d

Cir. 2003). Because the District Court explained at the plea colloquy both Delbridge’s

maximum potential sentence and the Court’s discretion in sentencing, and Delbridge

confirmed under oath that there were no other agreements or promises regarding his

potential sentence, enforcing Delbridge’s plea waiver with respect to this claim could not

result in a miscarriage of justice. See Shedrick, 493 F.3d at 299.

                                             3

       Delbridge asserted in his motion to vacate that he was denied effective assistance

of counsel because his pre-trial counsel failed to consult with him on a suppression

hearing. As the Government points out, however, Delbridge does not even attempt to

explain in his appellate briefing why barring this claim would result in a miscarriage of

justice. Because Delbridge entered into the plea agreement knowingly and voluntarily,

and because he has not suggested that enforcing this claim would result in a miscarriage

of justice, this claim is also barred.

                                             III

       For the foregoing reasons, we will affirm the District Court’s order denying

Delbridge’s § 2255 motion to vacate.




                                             12
