                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                          November 2, 2009
                         UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                    TENTH CIRCUIT                          Clerk of Court




 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                              No. 09-3096
 v.                                               (D.C. Nos. 5:06-CV-03260-WEB and
                                                        6:04-CR-10236-WEB-2)
 FRANCISCO R. VILLARREAL,                                       (D. Kan.)

           Defendant-Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


       Francisco R. Villarreal, a federal prisoner appearing pro se, appeals the district

court’s denial of his motion to vacate, set aside or correct his sentence under 28 U.S.C. §

2255. The district court denied a certificate of appealability (COA), but granted

Appellant’s motion to proceed in forma pauperis on this appeal. Appellant, who pled

guilty to federal drug and firearms charges, now seeks a COA from this court, arguing


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
that he was provided ineffective assistance of counsel by his trial counsel, and that the

government breached the plea agreement.

I.     Appellate Jurisdiction

       Before considering whether to grant Appellant a COA, we must determine

whether his appeal was timely filed. On May 31, 2007, the district court denied

Appellant’s § 2255 motion and declined to issue a COA. Appellant did not file a notice

of appeal until April 3, 2009. This notice was not filed within sixty days of the date the

court entered judgment, which ordinarily means the appeal is not timely. See United

States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993); see also Fed. R. App. P. 4(a)(1)(B).

       Appellant did file a motion for leave to proceed in forma pauperis on June 19,

2007, however, and that date is within sixty days of the district court’s denial of his §

2255 motion. The district court recognized that by filing that motion, Appellant “seeks to

appeal the court’s order denying him relief of his 28 U.S.C. § 2255 petition.” We

therefore have jurisdiction over this appeal if Appellant’s motion to proceed in forma

pauperis constitutes a notice of appeal. See Fleming v. Evans, 481 F.3d 1249, 1254 (10th

Cir. 2007) (construing a motion to proceed in forma pauperis as a notice of appeal); see

also Zapata v. Brandenburg, 291 F. App’x 150, 152 (10th Cir. 2008) (unpublished)

(same).

       Rule 3(c) requires a notice of appeal to contain the name of the party taking the

appeal, the judgment being appealed, and “the court to which the appeal is taken.” Fed.

R. App. P. 3(c). Mr. Villarreal’s motion to proceed in forma pauperis complies with just
                                              2
one of these requirements: it names the party taking the appeal. Failure to comply with

the other two elements is not necessarily fatal, however. See Smith v. Barry, 502 U.S.

244, 248 (1992) (stating that courts “liberally construe” documents that may constitute a

notice of appeal); see also Fed. R. App. P. 3(c)(4) (“An appeal must not be dismissed for

informality of form . . . .”). Indeed, a “failure to expressly specify the judgment appealed

from or the appellate court” does not bar an appeal; “‘where no doubt exists as to either,

Rule 3 buttressed by latitude for a pro se litigant forgives these informalit[ies] of form.’”

Hill v. Corr. Corp. of Am., Inc., 189 F. App’x 693, 696 (10th Cir. 2006) (unpublished)

(quoting Campiti v. Matesanz, 333 F.3d 317, 320 (1st Cir. 2003)) (internal quotation

omitted).

       A notice of appeal that fails to identify the proper order being appealed may

nevertheless satisfy Rule 3(c) “if the petitioner’s intent can be fairly inferred from the

petition or documents filed more or less contemporaneously with it.” Smith v. United

States, 561 F.3d 1090, 1097 (10th Cir. 2009) (quoting Indep. Petroleum Ass’n of

America v. Babbitt, 235 F.3d 588, 593 (D.C. Cir. 2001)). In Independent Petroleum

Association of America, the notice of appeal claimed to appeal only the denial of a

motion pursuant to Federal Rule of Civil Procedure 59. 235 F.3d at 593. The

Independent Petroleum court nevertheless construed the notice of appeal as actually

appealing the dismissal of the plaintiff’s complaint because all the arguments the plaintiff

made on appeal concerned that dismissal. Id. Here, there was only one substantive order

that Mr. Villarreal could have been appealing: the denial of his § 2255 motion. The
                                              3
district court made this inference when it considered Appellant’s motion to proceed in

forma pauperis and stated that Appellant “seeks to appeal the court’s order denying him

relief of his 28 U.S.C. § 2255 petition.” We thus conclude that it was “fairly infer[able]”

that Appellant sought to appeal the denial of his § 2255 petition when he filed his in

forma pauperis motion.

       Similarly, failure to identify this court in his in forma pauperis motion is not fatal

to our jurisdiction.

       Lest we become a citadel of technicality . . . “a defective notice of appeal
       should not warrant dismissal for want of jurisdiction where the intention to
       appeal to a certain court of appeals may be reasonably inferred from the
       notice, and where the defect has not materially misled the appellee.”

United States v. Treto-Haro, 287 F.3d 1000, 1002 n.1 (10th Cir. 2002) (quoting Graves v.

Gen. Ins. Corp., 381 F.2d 517, 519 (10th Cir. 1967)). In Treto-Haro, we excused the

government’s failure to identify this court in its notice of appeal because “the United

States Court of Appeals for the Tenth Circuit is the only Court to which the Government

may take this appeal,” and so the error “did not prejudice or mislead” the defendant.

Treto-Haro, 287 F.3d at 1002 n.1. Similarly, Mr. Villarreal’s sole avenue for appeal of

the denial of his § 2255 motion is to this court, and so it could be “reasonably inferred”

that his appeal was to this court. Id. Given that the appeal must come to this court, the

government could not have been prejudiced by his failure to refer explicitly to this court

in his motion to proceed in forma pauperis. Therefore, we conclude that Mr. Villarreal’s

motion to proceed in forma pauperis “evince[d] a clear intent to appeal” and so we have

                                              4
jurisdiction over his appeal. Zapata, 291 F. App’x at 152.

II.    Certificate of Appealability

       Before we can address the merits of Mr. Villarreal’s appeal, we must determine

whether to grant a COA. 28 U.S.C. § 2253(c)(1)(B). A COA may be issued “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). In order to make such a “substantial showing,” Mr. Villarreal must show

“that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (internal quotation omitted).

       On appeal, Mr. Villarreal argues that the government breached the plea agreement

by failing to ask the district court for a downward departure based on the substantial

assistance he rendered.1 See U.S. Sentencing Guidelines Manual § 5K1.1. The district

court did not directly address Appellant’s claim that the government breached the plea

agreement. Nevertheless, we deny COA on this claim for the reasons stated below.

       Mr. Villarreal also argues that his trial counsel provided ineffective assistance by


1
       Appellant raises these issues in three separate documents: the untimely notice of
appeal filed in the district court on April 3, 2009 (which he labeled a “Certificate of
Appealability”); his application for a COA filed in this court on June 23, 2009; and his
accompanying brief, also filed on June 23, 2009. Although he does not raise all of these
arguments in each of the documents, because Mr. Villarreal is proceeding pro se, we
construe his filings liberally and address each argument. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972)

                                              5
failing to prepare for trial, failing to inform the district court correctly as to the applicable

mandatory minimum and maximum sentences, by misleading Mr. Villarreal into

believing that he would receive a downward departure based on his substantial assistance,

and by failing to inform him of his right to appeal. Failing to see any ground on which

“reasonable jurists” could disagree, we also deny Mr. Villarreal a COA for this claim.

III.   Breach of the Plea Agreement

       The district court denied Appellant’s claims on the ground that he signed, as part

of the plea agreement, a written waiver of his right to attack collaterally his conviction

and sentence. The waiver stated that Appellant

       knowingly and voluntarily waives any right to appeal or collaterally attack
       any matter in connection with his prosecution, conviction and sentence. . . .
       [Appellant] also waives any right to challenge a sentence or otherwise
       attempt to modify or change his sentence or [the] manner in which it was
       determined in any collateral attack, including, but not limited to, a motion
       brought under Title 28, U.S.C. § 2255 . . . . 2

(Footnote added.) The district court concluded that the waiver was knowing and

voluntary, encompassed his § 2255 motion, and that enforcement of the plea did not

constitute a miscarriage of justice. United States v. Villarreal, No. 06-3260-WEB, 2007




2
       Although the record does not contain a copy of the plea agreement, it is available
on the District of Kansas’s electronic case filing system and we take judicial notice of it.
See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting that “we
may exercise our discretion to take judicial notice of publicly-filed records in our court
and certain other courts concerning matters that bear directly upon the disposition of the
case at hand”).

                                                6
WL 1579957, at *3 (D. Kan. May 31, 2007) (unpublished) (citing United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)).

       Before considering whether the appellate waiver was enforceable, however, the

district court should have considered Appellant’s argument that the government breached

the plea agreement “[b]ecause an appellate waiver is not enforceable if the Government

breaches its obligations under the plea agreement.” United States v. Trujillo, 537 F.3d

1195, 1200 (10th Cir. 2008) (quoting United States v. Rodriguez-Rivera, 518 F.3d 1208,

1212 (10th Cir. 2008)); see also United States v. Young, 206 F. App’x 779, 782-83 (10th

Cir. 2006) (unpublished) (“We now join our sister circuits in holding that a defendant's

waiver of the right to appeal or collaterally attack his sentence does not preclude an

appellate argument that the government breached the plea accord.”). Mr. Villarreal

claims that the government breached the plea agreement by failing to ask the district

court for a downward departure based on the substantial assistance Mr. Villarreal

believes he provided to the government. The district court failed to address this claim at

all, possibly believing it to be a challenge to Mr. Villarreal’s sentence, which would be

precluded by the terms of the appellate waiver. Whatever the court’s basis for not

directly addressing the breach issue, our precedent establishes that the government’s

compliance with a plea agreement is a condition precedent to the enforcement of an

appellate waiver. See Trujillo, 537 F.3d at 1200. Accordingly, we must first consider

whether the government breached the agreement before determining the applicability of

the waiver provision. See Rodriguez-Rivera, 518 F.3d at 1214 (“Because the
                                             7
Government did not breach the plea agreement, we now consider whether the appellate-

waiver provision bars [the] appeal.”).

       Typically, a claim that the government breached the plea agreement must be

brought on direct appeal rather than collateral review. See United States v. Walling, 982

F.2d 447, 448-49 (10th Cir. 1992) (citing United States v. Khan, 835 F.2d 749, 753 (10th

Cir. 1987)). Mr. Villarreal’s failure to argue that the government breached the agreement

on direct appeal thus bars our review of this claim “unless he can show cause and

resulting prejudice.” Id. at 449. Mr. Villarreal alleged in his April 3 filing that his

counsel failed to inform him of his right to appeal. We need not determine whether Mr.

Villarreal’s allegation of ineffective assistance constitutes cause for his failure to bring a

direct appeal, however, because he has failed to establish prejudice.

       The plea agreement states, in pertinent part:

       The defendant acknowledges that substantial assistance has not yet been
       provided by the defendant within the meaning of U.S.S.G. § 5K1.1 and [18
       U.S.C. § 3553]. Upon the determination by the United States the defendant
       has provided substantial assistance, the United States shall request that the
       Court consider reducing the sentence the defendant would otherwise
       receive under the applicable statutes and/or sentencing guidelines . . . .

The promise to file a substantial assistance motion is thus clearly made contingent

“[u]pon the determination of the United States” that Mr. Villarreal provided substantial

assistance. While Mr. Villarreal alleged several ways in which he provided assistance to

the government—including information tracing the importation of drugs from Mexico to

Kansas, the location of the main distributor, and agreeing to have his wife participate in a

                                               8
drug transaction—he has not alleged that the government ever made the determination

that he had provided substantial assistance.

       We have previously held that the government does not breach a plea agreement by

failing to move for a downward departure if the plea agreement leaves the decision to the

sole discretion of the prosecutor and the prosecutor is not motivated by an

unconstitutional motive. See, e.g., United States v. Domingueez-Beltran, 184 F. App’x

799, 803 (10th Cir. 2006) (unpublished); see also Wade v. United States, 504 U.S. 181,

186 (1992) (“It follows that a claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary

hearing.”). Here, while the plea agreement imposes a mandatory obligation on the

government to request a downward departure, the request is only mandatory if the

government, in its discretion, determines that Mr. Villarreal did in fact provide

substantial assistance. In United States v. Kirsch, 201 F.3d 449, 1999 WL 1188815 (10th

Cir. 1999) (unpublished table decision), we addressed a similar plea agreement, which

required the filing of a motion for a downward departure only after the government

exercised its discretion in determining that such substantial assistance had been provided.

In light of the discretion given to the government, we held that our review was limited to

determining whether the government acted with an unconstitutional motive in failing to

move for a downward departure. Id. at *2. Mr. Villarreal has not argued that the

government was motivated by an unconstitutional consideration, or that the government

did in fact determine that he had provided substantial assistance. We therefore decline to
                                               9
consider Mr. Villarreal’s argument that the government breached the plea agreement

because he has not shown that he will suffer any prejudice from our failure to do so.

IV.    Ineffective Assistance of Counsel

       A.     Implicating the Plea Agreement

       Because we reject Mr. Villarreal’s claim that the government breached the plea

agreement, we turn to whether the waiver of collateral review in the plea agreement is

enforceable to preclude Mr. Villarreal’s ineffective assistance of counsel claims.

Waivers of one’s right to appeal or collaterally challenge one’s sentence are generally

enforceable if they are made knowingly and voluntarily and do not result in a miscarriage

of justice. See Hahn, 359 F.3d at 1324-25. However, “a plea agreement waiver of

postconviction rights does not waive the right to bring a § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver.” United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). Mr.

Villarreal claims on appeal that his counsel misled him “in believing he would receive a

downward departure for his substantial assistance with the Government during

sentencing.” While he provides little discussion of this claim, a liberal construction of

the claim may implicate the validity of the plea itself: if counsel’s misrepresentations

about the likelihood of a downward departure led him to plead guilty under the erroneous

belief that he would receive a lighter sentence, then his ineffective assistance claim would

directly challenge the validity of the plea itself.


                                               10
       Even affording him such a liberal construction, however, the claim still fails

because Mr. Villarreal did not raise it below. In the district court, Mr. Villarreal claimed

that his counsel was ineffective for failing to argue during sentencing that he was entitled

to a substantial assistance downward departure. He also claimed that his counsel

informed him during the sentencing hearing that Appellant would receive a downward

departure after sentencing rather than during sentencing. But he does not claim anywhere

in his forty-one page petition that his counsel led him to believe, at the time he signed the

agreement, that he would receive a downward departure. Even liberally construing his

pleadings, we conclude that Mr. Villarreal did not raise this claim in the district court,

and we therefore do not consider it now on appeal. See Miller v. Champion, 262 F.3d

1066, 1070 n.2 (10th Cir. 2001) (holding that, where “even a liberal reading of

[defendant’s] original pro se habeas petition does not raise” certain issues, “these issues

were not properly before the district court, and we do not consider them on appeal”).

       B.     Remaining Ineffective Assistance Claims

       The rest of Mr. Villarreal’s ineffective-assistance claims—that counsel did not

adequately prepare for trial, that counsel failed to inform the court of the applicable

mandatory minimum and maximum sentences, and counsel failed to inform him of his

right to appeal—fall within the parameters of the waiver provision because they do not

“challeng[e] the validity of the plea or the waiver.” Cockerham, 237 F.3d at 1187. We

agree with the district court that the waiver applies here to preclude the remaining claims.

A waiver of the right to appeal or the right to obtain collateral review is enforceable if the
                                             11
appeal is within the scope of the waiver, the defendant knowingly and voluntarily agrees

to the waiver, and enforcement of the waiver does not constitute a miscarriage of justice.

See Hahn, 359 F.3d at 1325. Mr. Villarreal’s collateral challenge is within the scope of

the waiver, which explicitly bars “motion[s] brought under Title 28, U.S.C. § 2255.” In

addition, the district court found that Appellant acknowledged, both in the plea agreement

itself and during the Rule 11 plea colloquy, that he entered into the agreement knowingly

and voluntarily. Villarreal, 2007 WL 1579957, at *3; see also Hahn, 359 F.3d at 1325

(stating that courts look to the language of the plea agreement and the adequacy of the

Rule 11 colloquy to determine whether the waiver was knowing and voluntary). Finally,

Mr. Villarreal has neither alleged nor established that enforcement of the waiver

constitutes a miscarriage of justice. See Hahn, 359 F.3d at 1327 (holding that a

miscarriage of justice occurs only “(1) where the district court relied on an impermissible

factor, such as race, (2) where ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid, (3) where the sentence exceeds the

statutory maximum, or (4) where the waiver is otherwise unlawful.”) (quoting United

States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001)). Mr. Villarreal’s remaining

ineffective assistance of counsel claims are thus barred by the waiver provision of his

plea agreement.




                                            12
V.   Conclusion

     We therefore Deny a COA on Appellant’s claims and DISMISS the appeal.



                                    ENTERED FOR THE COURT


                                    David M. Ebel
                                    Circuit Judge




                                      13
