USA v. Merrifield, No. 07-41063 (5th Cir. 2009)
Annotate this Case
Download PDF
IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 10, 2009 No. 07-41063 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff - Appellee v. JIMMY RAY EARL MERRIFIELD Defendant - Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:05-CV-421 USDC No. 4:03-CR-84-11 Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:* Pursuant to a written plea agreement, Jimmy Ray Earl Merrifield pled guilty to conspiracy to manufacture, distribute, or possess with the intent to manufacture, distribute, or dispense methamphetamine and possession of a firearm by a drug user. As part of the plea agreement, Merrifield waived the right to appeal any issue, except issues related to the application of the Sentencing Guidelines or the basis of an upward departure. * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. No. 07-41063 Merrifield filed a 28 U.S.C. § 2255 motion, arguing ineffective assistance of counsel at both trial and on appeal. The district court found that the ineffective assistance claims were barred by the appeal waiver. Merrifield requested a certificate of appealability, but did not address the district court s determination that his ineffective assistance of counsel claims were barred by the appeal waiver. This Court granted Merrifield s COA with respect to (1) whether this court should take cognizance of the unraised issue of whether the district court erred in finding that Merrifield's ineffective assistance claims were barred by the appeal waiver in Merrifield's plea agreement ; and (2) if this court takes cognizance of the unraised issue, whether the district court erred in its procedural ruling. The Government concedes that this Court has discretion to consider whether the district court erred in finding that Merrifield s ineffective assistance claims were barred by the appeal waiver despite Merrifield not raising the issue in his pro se request for a COA. In light of the Government s concession, we exercise our discretion to address the issue.1 The appeal waiver was silent as to Merrifield s right to collaterally challenge his conviction and sentence under § 2255. The district court erred in finding that the waiver barred review of Merrifield s ineffective assistance of counsel claims brought through a § 2255 motion.2 We VACATE the district court s denial of Merrifield s § 2255 motion in part and REMAND for the consideration of Merrifield s ineffective assistance claims. 1 See Castro v. U.S., 540 U.S. 375, 381 83 (2003). 2 See U.S. v. Hollins, 97 F. App x 477, 479 (5th Cir. 2004) (defendant waived, without exception, his right to bring a collateral attack on his sentence under § 2255"); U.S. v. White, 307 F.3d 336, 338 (5th Cir. 2002) ( The plea agreement also contained a waiver of the right to appeal, expressly including a waiver of White's right to challenge his sentence under 28 U.S.C. § 2255. ). 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
