                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                  October 16, 2007
                                                    Elisabeth A. Shumaker
                         FO R TH E TENTH CIRCUIT        Clerk of Court



    U N ITED STA TES O F A M ER ICA,

              Plaintiff-A ppellee,

    v.                                                   No. 07-4135
                                                  (D.C. No. 2:06-CR -652-TS)
    GERALD W HEELER, JR.,                                 (D. Utah)

              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and GORSUCH, Circuit Judges.


         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant’s plea agreement. The motion is filed

pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc).

In response, defendant concedes that the government’s motion is well taken, and

that the appeal should be dismissed, because the appeal falls within the scope of

the appeal waiver, he knowingly and voluntarily waived his appellate rights, and


*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
enforcing the waiver w ould not result in a miscarriage of justice. See id. at 1325.

Defendant requests only that his right to assert an ineffective-assistance-of-

counsel claim in a 28 U.S.C. § 2255 motion be preserved. Defendant is correct

that such a claim must ordinarily be raised in a collateral § 2255 proceeding. See

United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (holding that this

rule applies even where a defendant seeks to invalidate an appellate waiver based

on ineffective assistance of counsel); see also United States v. Cockerham,

237 F.3d 1179, 1184 (10th Cir. 2001) (“[A] claim of ineffective assistance of

counsel in connection with the negotiation of a [plea] agreement cannot be barred

by the agreement itself.”) (quotation omitted).

      Accordingly, the government’s motion is G RANTED, and the appeal is

DISM ISSED, without prejudice to defendant’s right to raise an

ineffective-assistance-of-counsel claim in a collateral proceeding. The mandate

shall issue forthwith.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




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