USA vs. Wheeler, No. 07-4135 (10th Cir. 2007)
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FILED United States Court of Appeals Tenth Circuit October 16, 2007 UNITED STATES CO URT O F APPEALS 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. GERALD W HEELER, JR., No. 07-4135 (D.C. No. 2:06-CR -652-TS) (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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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-ofcounsel 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 -2-
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