                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2008

USA v. Mabry
Precedential or Non-Precedential: Precedential

Docket No. 06-2867




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                                  PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 06-2867


    UNITED STATES OF AMERICA

                     v.

             JAMES MABRY
            a/k/a James Young
               a/k/a Manny

             JAMES MABRY,
                   Appellant


Appeal from the United States District Court
  for the Middle District of Pennsylvania
     (D.C. Criminal No. 04-cr-00120)
 District Judge: Honorable Malcolm Muir


          Argued March 27, 2008
             Before: McKEE, RENDELL and
               TASHIMA,* Circuit Judges.

                    (Filed July 28, 2008)


David R. Fine, Esq.
Andrew L. Swope, Esq. [ARGUED]
Kirkpatrick & Lockhart Preston Gates Ellis
17 North Second Street, 18th Floor
Harrisburg, PA 17101
  Counsel for Appellant

John J. McCann, Esq.
Office of United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701

Theodore B. Smith, III, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
  Counsel for Appellee

__________________

    * Honorable A. Wallace Tashima, Senior Judge of the
      United States Court of Appeals for the Ninth Circuit,
      sitting by designation.


                             2
                  OPINION OF THE COURT


RENDELL, Circuit Judge.

       James Mabry appeals from the District Court’s denial of
his habeas petition in which he claimed that his counsel was
ineffective for failing to file an appeal. The District Court held
that Mabry’s claim was barred by the waiver in his plea
agreement of his right to file a collateral attack. While the issue
before us–which, we believe, involves the enforceability of the
waiver–may seem straightforward, there is a body of caselaw in
the courts of appeals–which, curiously, focuses not on the
waiver but on the importance of the right to appeal–that
complicates our analysis. Ultimately, we will affirm.

               I. Facts and Procedural History

        On March 25, 2004, a federal grand jury issued a four-
count indictment against James Mabry. On November 18, 2004,
a six-count superceding indictment was returned charging
Mabry with possession with intent to distribute cocaine and
crack, possession of a firearm during and in relation to a drug
trafficking crime, and felon in possession of a firearm on several
dates in March 2004. After a jury was selected for trial on May
3, 2005, Mabry entered into a written plea agreement pursuant
to which he pleaded guilty to one count of the indictment,
possession with intent to distribute more than five grams of
cocaine base, in return for the government’s dismissal of the

                                3
remaining charges.

        The plea agreement specifically provided that Mabry
waived any right “to appeal any conviction and sentence,
including a sentence imposed within the mandatory minimum,
on any and all grounds set forth in title 18 United States Code,
Section 3742 or any other grounds, constitutional or
nonconstitutional.” Plea Agreement ¶35. He also waived his
“right to challenge any conviction or sentence or the manner in
which the sentence was determined in any collateral proceeding,
including but not limited to a motion brought under Title 28,
United States Code, Section 2255.” Id. Mabry signed
underneath an acknowledgment, which stated “I have read this
agreement and carefully reviewed every part of it with my
attorney. I fully understand it and I voluntarily agree to it.”
(J.A. 66).

        In the course of a thorough change-of-plea colloquy,
government counsel read relevant parts of the plea agreement,
including the entire waiver provision, to the defendant. The
Court then asked Mabry if he understood the plea agreement and
received an affirmative answer. It confirmed that no promises
or threats had been made to induce him to plead and that he had
not been threatened with additional charges or other government
action if he failed to plead. It verified that Mabry had discussed
the terms of the Sentencing Guidelines with defense counsel and
understood that the Court was not bound by the calculation of
the Guidelines.

       The Court discussed the waiver of direct appeal and
collateral challenge rights at some length. It first referred Mabry

                                4
to the appellate waiver in the plea agreement and asked whether
he understood the meaning and effect of the waiver. It
explained that “unless there is an error that results in a
miscarriage of justice, you will have no right to challenge or
appeal an incorrect or allegedly incorrect determination of the
advisory sentencing guidelines imprisonment range made by this
Court” and inquired as to whether the defendant understood.
(J.A. 198).       The defendant answered both questions
affirmatively.

       The Court then turned to the waiver of the right to
collaterally attack the sentence. Directing the defendant to that
section of the plea agreement, the Court asked:

              Do you understand that although
              you will be sentenced after a very
              careful consideration of the
              advisory sentencing guidelines,
              unless there is an error which
              results in a miscarriage of justice,
              you will have no right to challenge
              in any appeal or collateral
              proceeding an incorrect or allegedly
              incorrect determination of the
              advisory sentencing guidelines?
              Do you understand that?

(J.A. 198). Once again, the defendant responded affirmatively.
The prosecutor was asked to advise Mabry of the meaning of a
collateral proceeding.


                               5
       Defense counsel then explained the meaning of the
appellate and collateral waivers in more depth:

            What the waiver of appeal, as his
            Honor just covered, is once the
            sentence is imposed you have given
            up your right to challenge the
            calculation which is advisory only
            of the sentencing guidelines. In
            addition to direct appeal rights,
            based on the frankly long standing
            rights going back to the Magna
            Carta, there’s a right to what is
            called habeas corpus.         Habeas
            corpus in the federal system has
            been codified to what is known as
            2255. Essentially you are probably
            familiar with 2255. It 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 direct
            appeal.

            By collateral, meaning those issues
            that would probably arise out of my
            effectiveness to represent you. So
            that this aspect of waiver of appeal
            is intended to cover not only your
            direct appeal rights, but once direct

                             6
              appeal is exhausted bringing a
              federal habeas corpus or a 2255 to
              raise other issues.

              Simply stated, you’ve agreed in this
              plea agreement that ultimately you
              will not raise any appeal issues
              concerning the advisory nature of
              the sentencing guideline
              calculation. Do you understand
              that?

(J.A. 199-200). Defense counsel thus specifically explained that
Mabry’s waiver included the right to assert that counsel was
ineffective. In response to the Court’s inquiry as to whether
there was any doubt in counsel’s mind that Mabry understood
the plea, he agreed that Mabry fully understood the meaning and
effect of the waiver. The Court then found that Mabry was
acting voluntarily and fully understood the consequences of the
waiver and accepted the plea. On March 9, 2006, Mabry was
sentenced to 210 months’ imprisonment followed by four years
of supervised release.

       On May 11, 2006, Mabry, proceeding pro se, filed a
Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255,
along with an affidavit and memorandum of law with
attachments in support of his motion. In the motion, he
complained of counsel’s failure to file an appeal
notwithstanding his request that counsel do so. His affidavit
contained declarations related only to that issue.       His
memorandum in support of the motion outlined the four issues

                               7
he would have raised on appeal. One sentence–“Counsel never
presented any reasons to waive his client’s right to appeal”–is
the only reference to waiver in the filing. (J.A. 134). Mabry did
not pursue or explain this statement further (indeed, it appears
to refer to his argument that defense counsel never explained
that any issues would be frivolous). Instead, his pro se
memorandum of law continued with a discussion of the four
issues that Mabry believes his counsel should have appealed.
All challenged the correctness of the calculation of his sentence
under the Sentencing Guidelines.1

       On May 15, 2006, the District Court summarily denied
the motion. It concluded that, because the four issues Mabry
allegedly asked his counsel to raise were insubstantial and
lacked merit, enforcement of the waiver of habeas did not work
a miscarriage of justice, and Mabry’s petition was therefore
barred by the waiver. The Court opined:

              Mabry waived his right to
              challenge his sentence in a
              collateral proceeding, including by


  1
     Namely, (1) a two-point enhancement for possession of a
firearm during and in relation to a drug trafficking crime under
U.S.S.G. § 2D1.1(b)(1) should not have been applied; (2) a one-
point deduction for acceptance of responsibility should have
been applied; (3) defendant was improperly designated an armed
career criminal under U.S.S.G. § 4B1.1; and (4) the criminal
history category used by the District Court substantially over-
represented the defendant’s criminal history.

                               8
              way of a section 2255 motion and
              there were no errors committed by
              this court which rise to the level of
              a miscarriage of justice which
              would entitle Mabry to pursue an
              appeal or collateral relief.     See
              United States v. Khattak, 273 F.3d
              557 (3d Cir. 2001) (“There may be
              an unusual circumstance where an
              error amounting to a miscarriage of
              justice may invalidate the waiver.”)
              In the present case, we discern no
              errors whatsoever in the conviction
              or sentence imposed.

(J.A. 21). Although the Court referred to the waiver, it did not
discuss the colloquy or whether it found the waiver to have been
knowing and voluntary. The Court refused to issue a certificate
of appealability, stating that any appeal from the order “will be
deemed frivolous and not taken in good faith.” (J.A. 22).

       Mabry, still proceeding pro se, then sought a certificate
of appealability from our Court. He contended that the District
Court’s conclusion that “there was no merits [sic] to appellant’s
constitutional claims, appellant had waived his appeal rights,
defense counsel was not ineffective, and there was no
substantial showing of a denial of a constitutional right” was in
error. Request for a Certificate of Appealability Pursuant to
Rule 22(a)(B)(2), Rules of Appellate Procedure (“Capp
Motion”) 5. In the same motion, Mabry urged the court to
determine whether the waiver was made knowingly and

                               9
voluntarily. He took the District Court to task for enforcing the
waiver, alluding in general terms to his contention that the
waiver was not knowing and voluntary. Capp Motion 9
(“[T]here is more than good reason, why, this Court should not
enforce the waiver provision of the plea agreement, in light of
Campusano v. United States, 442 F.3d 770, 2006. Under the
circumstance here, there has been a miscarriage of justice, since
the appeal waiver was not knowingly and voluntarily made by
appellant.”) (all grammatical errors in original).

       Mabry did not contend, however, that he was misled in
any way into pleading guilty or agreeing to the waiver. Nor did
his motion state, with any specificity, how the waiver might not
be knowing or voluntary; he did not claim to misunderstand the
waiver or assert any confusion as to the meaning of the term
“miscarriage of justice” used by the Court during the colloquy.

        In our Order entered on January 8, 2007, we granted the
certificate of appealability as to the following issues:

              (1) whether appellant’s waiver of
              his right to appeal and collaterally
              challenge his sentence was
              knowing and voluntary and whether
              that waiver is enforceable, see
              United States v. Khattak, 273 F.3d
              557, 562-63 (3d Cir. 2001); (2) if
              so, whether that waiver either bars
              consideration of appellant’s 28
              U.S.C. § 2255 motion or precludes
              relief on the merits of his claim that

                               10
             his counsel rendered ineffective
             assistance by failing to file a
             requested appeal, see, e.g.,
             Campusano v. United States, 442
             F.3d 770, 773-75 (2d Cir. 2006);
             Gomez-Diaz v. United States, 433
             F.3d 788, 793-94 (11th Cir. 2005);
             and (3) whether appellant is entitled
             to relief on the claims that he
             asserts his counsel should have
             raised on direct appeal. The Clerk
             will request counsel to represent
             appellant under Internal Operating
             Procedure 10.3.2.2


2
    We later modified the third issue to read:
                    whether, in the event the
                    Court determines that there
                    should be an evidentiary
                    hearing to consider whether
                    M r. M abry received
                    ineffective assistance of
                    counsel because he
                    requested that his trial
                    counsel file a notice of
                    appeal and his trial counsel
                    failed to do so, the Court
                    should decline to address
                    the merits of the claims
                    Mr. Mabry would have

                              11
       We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291 and § 2255(d). See United States v. Gwinnett,
483 F.3d 200, 203 (3d Cir. 2007). We review the validity of a
waiver de novo. United States v. Khattak, 273 F.3d 557, 560 (3d
Cir. 2001).

                       II. Discussion

        Criminal defendants may waive both constitutional and
statutory rights, provided they do so voluntarily and with
knowledge of the nature and consequences of the waiver. See
Town of Newton v. Rumery, 480 U.S. 386, 393 (1987); Brady v.
United States, 397 U.S. 742, 752-53 (1970); Adams v. United
States, 317 U.S. 269 (1942). The right to appeal in a criminal
case is among those rights that may be waived. Jones v. Barnes,
463 U.S. 745, 751 (1983). We have acknowledged the clear
precedent validating waivers of basic rights, even in criminal




                      raised on a direct appeal and
                      should instead remand the
                      case for such an evidentiary
                      hearing for the reasons
                      described in [Campusano v.
                      United States, 442 F.3d 770,
                      775-76 (2d Cir. 2006)].
Order of Aug. 1, 2007 (granting appellant’s motion to amend the
certificate of appealability).

                              12
cases.3 Khattak, 273 F.3d at 561. Noting the benefits of such


  3
      In Khattak, we wrote:
               As the Supreme Court has stated, “A
               criminal defendant may knowingly and
               voluntarily waive many of the most
               fundamental protections afforded by the
               Constitution.”        United States v.
               Mezzanatto, 513 U.S. 196, 201, 115 S.Ct.
               797, 130 L.Ed.2d 697 (1995); see also
               Peretz v. United States, 501 U.S. 923, 936,
               111 S.Ct. 2661, 115 L.Ed.2d 808 (1991)
               (“The most basic rights of criminal
               defendants are ... subject to waiver.”). In
               every plea agreement, the defendant
               waives the right to a jury trial, the right to
               confront and cross-examine witnesses, and
               the right against self-incrimination.
               Boykin v. Alabama, 395 U.S. 238, 243, 89
               S.Ct. 1709, 23 L.Ed.2d 274 (1969). In
               addition, a defendant can waive his rights
               against double jeopardy and his Sixth
               Amendment right to counsel. Ricketts v.
               Adamson, 483 U.S. 1, 10, 107 S.Ct. 2680,
               97 L.Ed.2d 1 (1987) (double jeopardy);
               Johnson v. Zerbst, 304 U.S. 458, 465, 58
               S.Ct. 1019, 82 L.Ed. 1461 (1938) (right to
               counsel).

                The United States Constitution

                                 13
waivers to the defendant, government and court system, we have
refused to find waivers of appeal rights violative of public
policy. Id. at 562. Accordingly, we have been willing to
enforce such waivers, provided that they are entered into


              does not guarantee a right to
              appeal. Jones v. Barnes, 463 U.S.
              745, 751, 103 S.Ct. 3308,
              77 L.Ed.2d 987 (1983). The right
              to appeal a criminal conviction is
              created by statute. See 18 U.S.C. §
              3742. The ability to waive statutory
              rights, like those provided in 18
              U.S.C. § 3742, logically flows from
              the ability to waive constitutional
              rights. Teeter, 257 F.3d at 22; see
              also Shutte v. Thompson, 82 U.S.
              (15 Wall.) 151, 21 L.Ed. 123
              (1873) (“A party may waive any
              provision, either of a contract or of
              a statute, intended for his benefit.”).
              If done knowingly and voluntarily,
              a statutorily created right to appeal
              is generally held to be waiveable.
              Nguyen, 235 F.3d at 1182 (noting “
              ‘the sole test of a waiver's validity
              is whether it was made knowingly
              and voluntarily’ ”) (quoting Anglin,
              215 F.3d at 1068). We agree.
273 F.3d at 561.

                                14
knowingly and voluntarily and their enforcement does not work
a miscarriage of justice. Id.4

       In the instant case, for the first time, Mabry argues,
through his new counsel, that his waiver was not knowing and
voluntary.5 More specifically, he contends that the change-of-
plea colloquy was inadequate and rendered the waiver not
knowing, because the District Court should have, but did not,
define “miscarriage of justice” or explain that the exception is
particularly narrow. Furthermore, Mabry urges, based on the
Supreme Court’s opinion in Roe v. Flores-Ortega, 528 U.S. 470


  4
    In Gwinnett, we clarified that, even where the defendant has
agreed to waive appellate rights, we have subject matter
jurisdiction but refrain from exercising it “if we conclude that [a
defendant] knowingly and voluntarily waived [his or] her right
to appeal unless the result would work a miscarriage of justice.”
483 F.3d at 203.
  5
     That Mabry did not specifically challenge the waiver in his
§ 2255 motion before the District Court does not foreclose our
review. He cannot be faulted for failing to raise an issue that is
neither a basis for habeas relief nor related to his ineffectiveness
claim. The fact that he had waived his right to proceed with
collateral review would have been a defense to his habeas claim
raised by the government. The government, however, did not
file an answer to the petition and had no opportunity to do so.
The petition (framed as a motion to vacate) was filed on May
11, 2006, and the District Court filed its Opinion and Order on
May 15, 2006.

                                15
(2000), and opinions in the circuit courts applying Flores-
Ortega in this situation, we must presume prejudice, rising to
the level of a miscarriage of justice, and remand for an
evidentiary hearing simply because there are allegations that
counsel disregarded Mabry’s instruction to file an appeal.

        In response, the government argues that the waiver was
knowing and voluntary and therefore valid. Because the waiver
was valid and a defendant may waive his right to accuse counsel
of post-sentencing ineffectiveness, the denial of the habeas
petition should be affirmed.      Accordingly, it says, the
enforcement of the waiver does not result in a miscarriage of
justice.

  A. The Knowing and Voluntary Nature of the Waiver

        The threshold issue before us is whether the waiver of
collateral challenge rights in Mabry’s plea agreement was
knowing and voluntary. Under Khattak and Gwinnett, where
there is a collateral waiver, our task on appeal of a denial of a
habeas petition is to determine whether the District Court
properly considered the validity of the waiver, specifically
examining the (1) knowing and voluntary nature, based on what
occurred and what defendant contends, and (2) whether
enforcement would work a miscarriage of justice. Whereas a
defendant bears the burden of presenting an argument that
would render his waiver unknowing or involuntary, a court has
an affirmative duty both to examine the knowing and voluntary
nature of the waiver and to assure itself that its enforcement
works no miscarriage of justice, based on the record evidence
before it. Khattak, 273 F.3d at 563. Even on summary

                               16
dismissal under Rule 4(b) of the Rules Governing Section 2255
Proceedings for the U.S. District Courts, a district court should
carefully examine both whether the waiver was knowing and
voluntary and whether it results in a miscarriage of justice.
Although our precedent has consistently followed this approach,
we now reaffirm that a district court has an independent
obligation to conduct an evaluation of the validity of a collateral
waiver. Compliance with this obligation aids our review and
ensures that the defendant’s rights are carefully considered.6

       Here, for the first time, in his counseled appeal, Mabry
contends that the colloquy was insufficient because the term
“miscarriage of justice” was not explained, rendering his waiver
unknowing. Mabry alleges that a lay person could not be
expected to understand “miscarriage of justice” as a narrow
exception to the broad waiver in his plea agreement and might
well understand it to bar a right to appeal only where the district
court has not erred. Therefore, he urges:

              The colloquy should have informed the
              defendant of the gravity of what he was
              giving up, and of the high hurdle he would
              face in trying to prove a miscarriage of


  6
    The issue of the validity of a waiver in a collateral challenge
comes to the District Court in the first instance upon the filing
of the habeas petition, whereas the issue in an appellate waiver
comes for resolution in the first instance to the appeals court.
The inquiry is the same, although at different court levels. We
review the former, and decide the latter in the first instance.

                                17
               justice. Those requirements are all the
               more important given the breadth of the
               waiver here, which, as noted above was
               broader than most. Fed R. Crim P. 11 and
               this Court’s jurisprudence required a more
               informative colloquy than Mr. Mabry
               received.

Appellant’s Br. 14.

       In denying Mabry’s petition for habeas, the District Court
did not consider the knowing or voluntary nature of the waiver.
We believe it should have done so. At minimum, it should have
reviewed the terms of the plea agreement and change-of-plea
colloquy and addressed their sufficiency.

       Because the District Court did not do so, we will engage
in an independent review of the record of proceedings to
determine whether the waiver of habeas was knowing and
voluntary. See Gwinnett, 483 F.3d at 203-04 (looking to the
plea agreement and colloquy in turn to evaluate knowing and
voluntary nature of the waiver). Mabry does not contend that he
was actually misled, but instead levels a facial challenge.
Accordingly, we will examine the written plea agreement and
the change-of-plea colloquy on their faces.7 The written plea


  7
   If Mabry were asserting that he was misled in some way, we
might remand for a hearing and permit the District Court to
consider the issue in the first instance. That is not the case here,
and the record is sufficiently developed that we can decide the

                                18
agreement here clearly provides that the waiver is very broad,
admits of no exceptions, and applies to both direct appeal and
collateral challenge rights. Counsel explained the waiver to
Mabry and Mabry signed it, acknowledging that he understood
the terms of the agreement.

       The colloquy similarly countermands any suggestion that
the waiver was not knowing and voluntary. Having scrutinized
the colloquy as we are required to do when reviewing the
enforcement of a waiver, we are satisfied that the district court
“inform[ed] the defendant of, and determine[d] that the
defendant underst[ood] . . . the terms of any plea-agreement
provision waiving the right to appeal or to collaterally attack the
sentence” as Federal Rule of Criminal Procedure 11(b)(1)(N)
requires. Before the court accepted the plea agreement, it
assured itself that Mabry had not been coerced or misled in any
way into entering into the agreement. The court explained the
waiver at some length, Mabry responded directly to the court’s
questions, the prosecution reviewed the waiver with the
defendant in open court, and defense counsel was permitted to
explain further.

       Despite Mabry’s arguments that the Court’s failure to
explain “miscarriage of justice” during the change of plea
colloquy renders the waiver involuntary or unknowing, the
Court’s statement regarding miscarriage of justice is, in fact, a
correct summary of the law. That the Court did not explain
further or elaborate is not error. We know of no court that has


issue as ably as the District Court.

                                19
imposed an obligation on sentencing courts to further define or
characterize this term or advise a defendant of its practical
applications. The phrase, on its own, connotes something grave
and out of the ordinary; our ruling might be different if it
seemed to except out mere legal error.

       Mabry does not claim that there is any other flaw in the
colloquy. Indeed, the colloquy amply demonstrates that the
District Court took care to apprise Mabry of the consequences
of the waiver and ensure that he understood the terms of the plea
agreement and entered into it willingly. Accordingly, we
conclude that the waiver was knowing and voluntary.

           B. Counsel’s Failure to File an Appeal

        Generally, having determined that the waiver was
knowing and voluntary, we would consider whether its
enforcement would work a miscarriage of justice in this case.
Mabry, however, asserts that, even assuming that the waiver is
knowing and voluntary, it should not be enforced, because there
is a different standard when the defendant complains that he
requested that counsel file an appeal and counsel failed to do so.
Mabry argues that, under the Supreme Court’s decision in Roe
v. Flores-Ortega, 528 U.S. 470 (2000), a presumption of
prejudice applies where counsel fails to file a requested appeal
even if the defendant has waived his appeal rights, and that,
somehow, this requires us to remand for an evidentiary hearing
even in the face of a waiver of collateral review. He relies
heavily on the decision of the Court of Appeals for the Second
Circuit in Campusano v. United States, 442 F.3d 770 (2d Cir.
2006), and urges that we follow its lead and disregard the

                               20
existence of the waiver. He contends he is entitled to an
evidentiary hearing to determine whether he instructed his trial
counsel to file a notice of appeal, and, if so, he must be
permitted to pursue a direct appeal.

       Our Court has not yet considered this argument.
Whether, where there are claims of ineffective assistance,
Flores-Ortega changes our analysis of the validity of waivers of
collateral review remains an open question.

        There is admittedly some confusion in this area. This is
largely due to the fact that, in a case that did not involve a
waiver, the Supreme Court has given the right to appeal special
significance as it relates to ineffectiveness claims. In Flores-
Ortega, the Supreme Court held that “counsel has a
constitutionally imposed duty to consult with the defendant
about an appeal when there is reason to think either (1) that a
rational defendant would want to appeal (for example, because
there are non-frivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he
was interested in appealing.” 528 U.S. at 480. The Flores-
Ortega Court made clear that a presumption of prejudice applies
in the context of an ineffectiveness claim because an attorney’s
deficient performance deprives the defendant of his or her
opportunity for an appellate proceeding. Id. at 483. Notably,
Flores-Ortega did not address whether this principle has any
force, let alone controls, where the defendant has waived his
right to appellate and collateral review.

       Yet, some courts of appeals have approached the issue
here, raised in the context of waiver, as if Flores-Ortega did

                              21
indeed decide it. In Campusano, the key case applying Flores-
Ortega, the Court of Appeals for the Second Circuit framed the
issue as “whether the Flores-Ortega presumption of prejudice
applies to a defendant who has waived appeal in a plea
agreement.” 442 F.3d at 773. Although the procedural posture
of the case was the denial of the defendant’s § 2255 motion, the
court never even discussed the fact that the defendant had
waived his habeas rights. It did not evaluate the validity of the
habeas waiver, but instead skipped immediately to the merits of
the argument raised in the § 2255 motion, namely whether trial
counsel was ineffective in failing to file a direct appeal.
Surprisingly, we think, a majority of other courts of appeals to
consider the issue have engaged in similarly flawed reasoning
and have reached the same conclusions.8 Instead of scrutinizing
the waiver, these courts have focused on the importance of
appeal rights as set forth in Flores-Ortega–a non-waiver
case–and in reliance thereon permitted appeals explicitly barred
by waiver.

       Heretofore, only one court of appeals–the Court of
Appeals for the Seventh Circuit–has disagreed with this line of
cases and expressed its skepticism toward this over-expansion
of Flores-Ortega. Nunez v. United States, 495 F.3d 544 (7th
Cir. 2007), vacated on other grounds, 2008 WL 2484932 (U.S.


  8
   United States v. Tapp, 491 F.3d 263 (5th Cir. 2007); United
States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.
2005); United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005);
Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.
2005).

                               22
2008). In that case, faced with a defendant’s assertions that he
did not understand the plea and his lawyer failed to follow his
direction to file an appeal, the court turned directly to an
examination of the waiver of appeal and collateral challenge.
Concluding that the plea was knowing and voluntary and the
waiver should be enforced, the court held that the “claim of
post-sentencing ineffective assistance falls squarely within the
waiver.” Id. at 546. The court then went on to note that, in the
absence of a waiver, the filing of a notice of appeal is a purely
ministerial task that could only help, not harm the defendant. Id.
at 547 (citing Flores-Ortega, 528 U.S. at 477). By contrast,
where there is a total appellate and collateral waiver,
“counsel’s duty to protect his or her client’s interest militates
against filing an appeal” which could cost the client the benefit
of the plea bargain against his or her best interest. Id. at 548;
see also Sandoval-Lopez, 409 F.3d at 1197 (“Sometimes
demanding that one’s lawyer appeal is like demanding that one’s
doctor perform surgery, when the surgery is risky and has an
extremely low likelihood of improving the patient’s
condition.”).9 Thus, there is no reason to presume prejudice


   9
     Even those courts that have applied Flores-Ortega in the
waiver context have noted that presuming prejudice where there
is a waiver makes little sense, because “most successful § 2255
movants in the appeal waiver situation obtain little more than an
opportunity to lose at a later date.” United States v. Poindexter,
492 F.3d 263, 273 (4th Cir. 2007); accord Campusano, 442 F.3d
at 777 (“Admittedly, applying the Flores-Ortega presumption to
post-waiver situations will bestow on most defendants nothing
more than an opportunity to lose.”). So doing, they reach results

                               23
amounting to a miscarriage of justice in such a situation where
the attorney’s filing of an appeal would constitute a violation of
the plea agreement, relieving the government of its obligations
as well.

        While we think the Seventh Circuit adopted the correct
approach in Nunez, the Supreme Court recently granted
certiorari in Nunez, vacating and remanding the case to the
Seventh Circuit Court of Appeals “in light of the position
asserted by the Solicitor General in his brief for the United
States filed May 12, 2008.” Nunez v. United States, --- S. Ct.
----, 76 U.S.L.W. 3666, 2008 WL 2484932 (2008). While the
Solicitor General’s brief takes many positions,10 his dispositive
position and advice to the Court, which would appear to have
been heeded, faults the Seventh Circuit for reading the waiver




that are admittedly “contrary to common sense.”                 See
Sandoval-Lopez, 409 F.3d at 1196.
  10
     Including the position that there really is no circuit split on
the issue before us due to the failure of the courts of appeals to
specifically address the issue of the effectiveness of the waiver.
Brief of the United States on Petition for a Writ of Certiorari,
Nunez v. United States, --- S. Ct. ----, 76 U.S.L.W. 3666 (2008)
(No. 07-818), 2008 WL 2050805, at *12 We, however, view
the caselaw as creating a split by disregarding the existence of
the waiver.

                                24
too broadly.11 Brief of the United States on Petition for a Writ
of Certiorari, Nunez v. United States, --- S. Ct. ----, 76 U.S.L.W.
3666 (2008) (No. 07-818), 2008 WL 2050805. This concern is
not present here given the broader waiver in this case and the
nature of the issues Mabry would raise on appeal. While
containing some discussion of the Flores-Ortega issue, the
Solicitor General’s brief actually urges the Court not to decide
this issue, saying it need not do so because the issue “was not
resolved below and did not form the basis for the judgment.” 12
Id. at *12.

        In any event, we believe that the other courts of appeals
that have considered this issue have applied Flores-Ortega to a
situation in which it simply does not “fit.” The analysis
employed in evaluating an ineffectiveness of counsel claim does
not apply when there is an appellate waiver. While a defendant
may be entitled to habeas relief if his attorney ineffectively fails
to file a requested appeal because it is presumed to be
prejudicial under Flores-Ortega, if that same defendant has
effectively waived his right to habeas, he cannot even bring such
a claim unless the waiver fails to pass muster under an entirely
different test: one that examines its knowing and voluntary


   11
     Properly read, it did not bar the appeal Nunez wished to
pursue that complained of the lack of voluntariness of his plea
agreement.
   12
     The two-sentence order includes a vigorous three-judge
dissent chastising the Court for, inter alia, vacating a judgment
without deciding whether it was right or wrong.

                                25
nature and asks whether its enforcement would work a
miscarriage of justice.13 Mabry, and proponents of the reasoning
in Campusano, would somehow disregard or limit the effect of
the waiver based upon the Supreme Court’s view of the
importance of the right to appeal and the impact of its loss by
virtue of counsel’s failure to act. But, as we noted above, both
we and the Supreme Court have upheld the validity of waivers
of rights to appeal. Surely, the right to appeal that has been
waived stands on a different footing from a preserved right to
appeal, both conceptually and in relation to counsel’s duty to his
client with respect thereto.14 This distinction has been ignored
by those courts of appeals adhering to Campusano’s analysis.

       Accordingly, we reject the approach taken in the
Campusano line of cases as not well-reasoned. Our reading of
the cases indicates that they disregard the precise issue before
them, and us: namely, the validity of the waiver. They seem to


  13
     We note that while Mabry urges that the waiver is invalid
based on the concept of presumed prejudice, the Campusano
line of cases does not. Instead, they totally ignore the existence
of the waiver.
   14
     If this issue were limited to an ineffectiveness claim and
were evaluated under a Strickland analysis, one would wonder
how counsel’s failure to file a notice of appeal could be
considered “outside the wide range of professionally competent
assistance,” if the right to appeal had been knowingly and
voluntarily waived. See Strickland v. Washington, 466 U.S.
668, 690 (1984).

                               26
hold that waivers of collateral attack are automatically invalid
because the non-waiver cases say that an attorney acts
unreasonably and prejudice is presumed if he fails to file an
appeal upon request. They do not resolve the threshold issue of
whether the waiver of collateral review rights should preclude
a petitioner from asserting a Flores-Ortega claim for a reinstated
appeal in the first place. Often, they fail to address, let alone
explain, that there even is a waiver of collateral attack. See, e.g.,
Garrett, 402 F.3d at 1266 (analyzing the issue as if only an
appellate waiver existed and dismissing the total collateral
attack waiver in a footnote because “the plain language of the
waiver does not address the type of claim he has raised,”
seemingly imposing a requirement of heightened particularity in
waivers of collateral proceedings).

       We, therefore, will part ways with the approach taken by
the majority of courts of appeals. Although vacated on other
grounds, the Nunez opinion of the Court of Appeals for the
Seventh Circuit presents the proper focus, namely giving effect
to the waiver.15 We will consider the validity of the collateral


  15
    It is interesting to note that, in the Nunez case, the petitioner
asked the Court to decide the Flores-Ortega issue, Petition for
a Writ of Certiorari, Nunez v. United States, --- S. Ct. ----, 76
U.S.L.W. 3666 (2008) (No. 07-818), 2007 WL 4466866, but the
Court, instead, remanded based on the breadth of the waiver.
While it could be argued that the Supreme Court’s decision to
look at the waiver signaled an affirmation of our review that the
waiver should be the focus, it could also reflect a desire to
decide the issue on that ground because the Solicitor General

                                 27
waiver as a threshold issue and employ an analysis consistent
with other waiver cases. Having already determined that
Mabry’s waiver was knowing and voluntary, we now turn to an
examination of whether enforcing the waiver here would work
a miscarriage of justice.

                  C. Miscarriage of Justice

        In the waiver context, we have adopted a common sense
approach in determining whether a miscarriage of justice would
occur if the waiver were enforced. In Khattak, 273 F.3d at 563,
we endorsed the methodology of the Court of Appeals for the
First Circuit, which suggested “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” as factors to consider before invalidating a waiver
as involving a “miscarriage of justice.” United States v. Teeter,
257 F.3d 14, 25-26 (1st Cir. 2001). At the same time, we have
declined to identify a list of specific circumstances which would
give rise to, or constitute, a miscarriage of justice.

       As in any other case in which the waiver is alleged to bar
collateral attack, here we look to the underlying facts to
determine whether a miscarriage of justice would be worked by
enforcing the waiver. In the present case, it is undisputed that


urged them to do so. Brief of the United States, Nunez, --- S. Ct.
----, 76 U.S.L.W. 3666 (No. 07-818), 2008 WL 2050805 at *10.

                               28
the waiver in Mabry’s plea agreement was broad and offered no
express exceptions.16 Only the miscarriage of justice exception
is available. This is not a case where enforcing a collateral
attack waiver would result in barring an appeal expressly
preserved in the plea agreement. We have held that enforcing
such a waiver would result in a miscarriage of justice. United
States v. Shedrick, 493 F.3d 292, 303 (3d Cir. 2007)
(invalidating a collateral waiver because defense counsel’s
constitutionally deficient conduct in failing to file an appeal as
instructed deprived the defendant of “the opportunity properly


  16
     A few comments are in order about the waiver in this case.
First, although the sweep of this waiver seems particularly one-
sided and unusually broad, we were reminded at oral argument
by the Assistant United States Attorney that the government
agreed to surrender a mandatory consecutive term of
imprisonment of five years as part of the consideration for the
plea agreement; something the government does not normally
do. Second, if one were to question (although Mabry does not)
whether the waiver is indeed broad enough to cover this type of
alleged attorney ineffectiveness, i.e., post-waiver failure to file
an appeal, it should be readily apparent that this claim would not
succeed in the unique fact pattern presented here where the
issues that Mabry wished to pursue on appeal were clearly
waived, and there was no allegation by him as to lack of
voluntariness. Counsel’s failure to file an appeal in such a
situation could not be held to be sub-standard, nor did it result
in any prejudice to Mabry. This is yet another example of why
presuming prejudice is not appropriate where a waiver is
present.

                                29
to raise the issue he had previously expressed a desire for this
Court to review and which he had explicitly preserved in his
plea agreement and colloquy”). Nor is this a case raising
allegations that counsel was ineffective or coercive in
negotiating the very plea agreement that contained the waiver.
 See, e.g., United States v. Wilson, 429 F.3d 455 (3d Cir. 2005)
(stating that enforcing a waiver in connection with a coerced
plea would work a miscarriage of justice, but then determining,
based on the plea colloquy, that the plea was knowing and
voluntary).

        Under a proper analysis of the validity of the waiver here,
we must conclude that enforcing the waiver would not result in
a miscarriage of justice. Upon a careful review of Mabry’s
filings, we see that Mabry has not identified any nonfrivolous
ground, not covered by the waiver, for a direct appeal or
collateral attack in his petition, Capp Motion, his counseled
brief, or any other filing. Mabry does not contend that he was
misled or that enforcing the waiver is somehow unjust.17 The
issues Mabry seeks to raise on appeal are insubstantial and
clearly encompassed by the broad waiver. They do not
implicate fundamental rights or constitutional principles. The
District Court’s conclusion–that the purportedly appealable
issues are not substantial and fall clearly within the terms of the


   17
     Like the Nunez court, we acknowledge that, in certain
unique factual situations not presented here, defendant’s
counsel’s failure to file an appeal even in the face of a waiver
would result in a miscarriage of justice. Nunez, 495 F.3d at 547-
48.

                                30
waiver–is correct.

        Enforcing the waiver is in line with justice, not a
miscarriage of it. The waiver meets the two-prong test we use
to evaluate waivers in that it: 1) was knowing and voluntary, as
the colloquy was sufficient and Mabry has not indicated that he
did not understand it, and 2) does not work a miscarriage of
justice.18

        In closing, we note that, from an analytic standpoint, the
concept of a “presumption of prejudice” flowing from
ineffectiveness that fits very comfortably in the Flores-Ortega
setting where there is no waiver really does not suit the situation
in which a waiver is present. Without a waiver, the recognition
of a defendant’s right to an appeal is paramount and counsel’s
ineffectiveness clear, for the defendant was entitled to an appeal.
With a waiver, that entitlement disappears, and the
ineffectiveness of counsel in not pursuing a waived appeal is
less than clear. The analysis of the waiver along the lines
developed in our jurisprudence, which permits the court to
refuse to enforce it if it would work a miscarriage of justice,
allows consideration of fundamental fairness in a given
situation.

       For the foregoing reasons, we will enforce the collateral
waiver provision of the plea agreement and will affirm the
District Court’s order.


  18
     We do not reach the last issue set forth in the certificate, as
our focus is on the waiver of collateral review and we uphold it.

                                31
