                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  November 28, 2007
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-7009
                                                 (D.C. Nos. 05-CV-76-P and
    ROGER DALE MAXWELL,                                 04-CR-86-P)
                                                        (E.D. Okla.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HOLMES, HOLLOWAY, and SEYMOUR, Circuit Judges.



         Roger Dale Maxwell appeals from the district court’s order denying his

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

We previously granted him a certificate of appealability, see id. § 2253(c), and we

now affirm in part, vacate in part, and remand with instructions to dismiss in part.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                      FACTS

      Mr. Maxwell was indicted on April 23, 2003, and charged with seven

felony counts, including one count of conspiracy to manufacture

methamphetamine; one count of maintaining an establishment for manufacturing

operations; three counts of possession with intent to distribute methamphetamine;

and two counts of being a felon in possession of ammunition. In December 2003,

he filed a motion to dismiss his appointed counsel, which the district court

denied. A month later, on January 23, 2004, he appeared at a pretrial conference

and announced his desire to waive his right to jury trial and to plead guilty. The

terms of the plea agreement had not been finalized prior to this hearing.

      Three days later, on January 26, 2004, Mr. Maxwell pleaded guilty pursuant

to a written plea agreement to a single count of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). At some point,

the prosecutor made certain changes to the written plea agreement, which were

initialed by the prosecutor but not by Mr. Maxwell or his counsel. These changes

were favorable to Mr. Maxwell, as they reduced the minimum term of

incarceration from ten years to zero, the maximum term from life imprisonment to

twenty years, and the maximum fine from $4 million to $1 million.

      The Probation Department prepared a presentence report (PSR). The report

calculated Mr. Maxwell’s offense level at 31 and assigned him a criminal history

category of III, resulting in a Guideline imprisonment range of 135 to 168

                                        -2-
months. Mr. Maxwell did not file any objections to the PSR. The district court

sentenced him to a term of imprisonment of 160 months, followed by 36 months’

supervised release.

      Neither Mr. Maxwell nor his counsel filed a timely appeal from his

judgment and sentence. On September 17, 2004, Mr. Maxwell filed a Motion for

Consideration of Defendant’s Late Notice of Appeal with this court, which was

denied. On February 28, 2005, he filed this § 2255 motion pro se, seeking relief

based on his counsel’s alleged ineffective assistance in (1) failing to properly

advise him concerning issues surrounding his plea and at sentencing, and

(2) failing to file a direct appeal as he requested after he received a

greater-than expected sentence. 1 The government responded with a motion to

dismiss the § 2255 motion, contending that in his plea agreement, Mr. Maxwell

waived his right to seek relief through post-conviction relief and § 2255

proceedings. The district court did not dismiss on this basis, but instead held an

evidentiary hearing on the merits of Mr. Maxwell’s claims, at which he appeared

pro se and presented evidence. The district court subsequently denied his motion.




1
       Mr. Maxwell later abandoned his “failure to appeal” claim. R., Vol. I, doc.
30, at 1 (“Although Mr. Maxwell had cited three instances supporting his claim of
ineffectiveness, at the time of the plea and the sentencing and failure to file a
notice of appeal, the only matters now being pursued by Mr. Maxwell involve his
change of plea and his sentencing.”).

                                          -3-
      Mr. Maxwell appealed. A panel of this court reversed the district court’s

denial of the § 2255 motion, reasoning that the district court should have

appointed counsel to represent him at the evidentiary hearing. United States v.

Maxwell, 184 F. App’x 708, 709-10 (10th Cir. 2006). On remand, the district

court appointed counsel and held a second evidentiary hearing. After reviewing

the evidence presented at the second hearing, the district court concluded that he

“was fully advised of the terms and conditions of his plea agreement and the

potential range of punishment which he was facing upon the entering of his plea

of guilty.” R., Vol. I, doc. 36, at 6. It therefore denied his § 2255 motion.

Mr. Maxwell appealed.

                                    ANALYSIS

      Mr. Maxwell’s plea agreement contained the following provision waiving

his right to appeal and to seek collateral review of his conviction and sentence:

      Defendant expressly waives the right to appeal defendant’s sentence
      on any ground, except to challenge an upward departure from the
      applicable guideline range as determined by the Court. Defendant
      specifically waives any appeal rights conferred by . . . any
      post-conviction proceedings, and any habeas corpus proceedings. . . .
      Realizing the uncertainty in estimating what sentence defendant will
      ultimately receive, defendant knowingly waives the right to appeal
      the sentence (except as to an upward departure) and agrees not to
      contest such sentence in any post conviction proceedings, including
      but not limited to writs of habeas corpus or coram nobis concerning
      any and all motions, defenses, probable cause determinations, and
      objections which defendant has asserted or could assert to this
      prosecution and to the court’s entry of judgment against defendant
      and imposition of sentence[.]


                                         -4-
Plea Agreement, at 10-11 (located in Aplt. Addendum).

      As noted, the government asserted this appeal waiver as a defense to his

§ 2255 motion in district court. It continues to assert the appeal waiver on

appeal, see Aplee. Br. at 14-16, although it has also briefed the merits of the

motion. Given the government’s preservation of this issue throughout the

proceedings, before reaching the merits of Mr. Maxwell’s arguments we will first

consider whether the district court should have barred the § 2255 motion based on

his waiver of collateral review.

      “A defendant’s knowing and voluntary waiver of the statutory right to

appeal and to collaterally attack his sentence is generally enforceable.” United

States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003) (internal quotation

marks omitted). We determine whether such waivers are enforceable using a

three-prong analysis, in which we ask: (1) whether the disputed appeal falls

within the scope of the waiver, (2) whether the defendant knowingly and

voluntarily waived his appellate rights, and (3) whether enforcing the waiver will

result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004) (en banc). We review the question of whether a defendant has

waived his right to collateral review pursuant to a § 2255 motion de novo. United

States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001).

      In his first issue, Mr. Maxwell contends that his guilty plea was invalid

because his attorney

                                         -5-
      failed to discuss with him or accurately tell him the terms of the
      agreement, the changes in the agreement, the impact of relevant
      conduct, the correct statutory sentence applicable to the case, or the
      possible guidelines that might be applicable.

Aplt. Opening Br. at 15-16. This argument may be considered on the merits,

notwithstanding the waiver. A waiver of post-conviction 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 waiver” itself. Cockerham,

237 F.3d at 1187; see also Hahn, 359 F.3d at 1327 (permitting appeal

notwithstanding waiver where miscarriage of justice would otherwise result

because “ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid.”).

      We affirm, nevertheless, because we agree with the district court that

Mr. Maxwell failed to establish that his counsel was constitutionally ineffective in

connection with the negotiation of the plea and the plea agreement. “A claim for

ineffective assistance of counsel presents a mixed question of fact and law.”

United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006). “In order to

establish a successful claim for ineffective assistance of counsel, [Mr. Maxwell]

must show (1) that counsel’s performance was deficient, and (2) that this deficient

performance prejudiced his defense.” Id. (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “[T]his Court accepts the District Court’s factual

findings so long as they are not clearly erroneous and reviews de novo whether


                                         -6-
[the attorney’s] assistance was ineffective as a matter of law.” Boltz v. Mullin,

415 F.3d 1215, 1222 (10th Cir. 2005).

      Both Mr. Maxwell and his former attorney Mr. Smith testified at the second

evidentiary hearing. As the district court noted, their testimony was diametrically

opposed. Whose version of these events to believe depends largely on an

evaluation of the witnesses’ credibility, a task that lies within the province of the

district court rather than this court. See, e.g., United States v. Browning, 252 F.3d

1153, 1157 (10th Cir. 2001).

      Mr. Maxwell testified he spoke to Mr. Smith for five minutes prior to

entering the courtroom to change his plea; that he did not read the plea agreement

before he pleaded guilty; that he did not know what was in the agreement; and

that Mr. Smith never explained the terms of the plea agreement to him.

Mr. Smith, by contrast, testified that he met with Mr. Maxwell on several

occasions; that he visited with him more than on an average case; and that he

went over the plea agreement with him, specifically including its appeal waiver

provision, which Mr. Smith did not like but which the government considered

non-negotiable. Mr. Smith recalled that Mr. Maxwell was less concerned about

the appeal waiver than he was.

      Mr. Maxwell makes much of the fact that the changes to the plea agreement

were initialed only by the prosecutor. He suggests this is evidence that counsel

did not in fact go over the plea agreement with him before he signed it.

                                          -7-
Mr. Smith testified, however, that he would not necessarily have initialed the

change or instructed his client to do so. R., Vol. III, at 68. Despite the absence

of counter-initialing, Mr. Smith was “sure” he went over the changes with

Mr. Maxwell. Id.

      Mr. Maxwell stated that his counsel advised him that his sentence would be

between five and ten years. The district court did not find this credible, in light

of counsel’s statement at the change of plea hearing that Mr. Maxwell would

probably be at offense level 28, with a criminal history category of IV, for

Sentencing Guideline purposes, which the district court equated to a guideline

range of 110 to 137 months. 2

      In addition to the advice and explanation he received from his counsel,

Mr. Maxwell was advised at the time he entered his change of plea that the

offense to which he was pleading guilty carried a penalty of up to 20 years’

imprisonment. The government estimated that he would probably be facing a

sentence approaching the statutory maximum sentence of 20 years’ imprisonment.


2
        Mr. Smith also stated that he believed Mr. Maxwell would be facing what
he termed “near the minimum sentence.” Change of Plea Hearing Tr. (Aplt.
Addendum), at 10. As Mr. Maxwell points out, under the amended terms of the
plea agreement, there was no minimum sentence other than probation. Aplt.
Opening Br. at 14. Mr. Maxwell may be correct that counsel anticipated a
sentence near the minimum of the unamended agreement, i.e., ten years. See id.
If this is true, Mr. Smith’s estimate of the sentence was closer to the actual
sentence Mr. Maxwell received than the government’s estimate. In any event, the
magistrate judge advised Mr. Maxwell before he changed his plea that these were
only estimates and that he could be sentenced to up to 20 years’ incarceration.

                                          -8-
Mr. Maxwell indicated that he understood what was being discussed and that he

was generally familiar with the Sentencing Guidelines. The magistrate judge

explained to him that any estimates the attorneys made regarding his sentence

were only estimates and that the sentencing judge would determine the sentence,

subject to the Guidelines.

      In sum, Mr. Maxwell has failed to show that the district court erred in

finding that his attorney explained the plea and the plea agreement and that he

was informed at the time of his plea concerning the sentence that he faced under

the Guidelines. We agree with the district court that he has not shown that his

attorney’s performance in negotiating his guilty plea and the accompanying plea

agreement was constitutionally deficient, or that any errors in his counsel’s

estimates concerning his sentence prejudiced him. We therefore affirm the

district court’s denial of his ineffective assistance claim relating to the entry of

his plea and his plea agreement.

      Mr. Maxwell also contends that his attorney was ineffective in connection

with his sentencing. He argues that his counsel failed to advise him of the

contents of the PSR and failed to advise him properly concerning the sentence he

could expect to receive under the Guidelines, so that he could object to the PSR.

      A defendant who pleads guilty may waive his right to attack his sentence

based on ineffective assistance of counsel claims that do not attack the validity of

the plea or the plea agreement itself. Cockerham, 237 F.3d at 1187. Because we

                                          -9-
have affirmed the district court’s rejection of Mr. Maxwell’s ineffective

assistance claims that could vitiate the appeal waiver (i.e., that attack the validity

of his plea and the plea agreement), the appeal waiver in the agreement remains

effective and should have been enforced as to his ineffective assistance of

sentencing claim. By its terms, Mr. Maxwell explicitly waived his right (1) to

appeal his sentence unless it represented an upward departure from the Guideline

range, and (2) to seek collateral review of his sentence. He was therefore barred

from bringing his ineffective assistance at sentencing claim in district court.

      The judgment of the district court is AFFIRMED as to Mr. Maxwell’s claim

alleging ineffective assistance of counsel in connection with his plea negotiation

and plea agreement. The judgment of the district court denying the § 2255

motion is VACATED with regard to his claim alleging ineffective assistance of

counsel at sentencing, and the case is REMANDED with instructions to dismiss

that claim in order to enforce the waiver of collateral review contained in

Mr. Maxwell’s plea agreement.


                                                      Entered for the Court



                                                      Jerome A. Holmes
                                                      Circuit Judge




                                          -10-
