United States District Court, N.D. Georgia, Atlanta Division
§ 2255 MOTION 28 U.S.C. § 2255
C. JONES, UNITED STATES DISTRICT JUDGE.
pro se, filed a motion under 28 U.S.C. § 2255
challenging his prison sentence. (Doc. 198 in
1:14-cr-106-SCJ-LTW.) Magistrate Judge Walker screened the
motion as required by Rule 4 of the Rules Governing §
2255 Proceedings for the U.S. District Courts. (Doc. 199.)
Judge Walker issued a Report and Recommendation
(“R&R”) that the motion be dismissed because
the appeal waiver in the plea agreement that Movant
negotiated with Respondent bars him from pursuing relief
under § 2255. (Id.) Movant filed objections to
the R&R. (Doc. 201.)
district judge must conduct a careful and complete review of
a magistrate judge's R&R. Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). The
district judge must “make a de novo determination of
those portions of the [R&R] to which objection is
made.” 28 U.S.C. § 636(b)(1)(C); see Fed.
R. Civ. P. 72(b)(3). Those portions of the R&R for which
there is no objection are reviewed only for clear error.
See Fed. R. Civ. P. 72(b)(3).
R&R described the appeal waiver in Movant's plea
agreement - which includes waiver of “motions filed
pursuant to 28 U.S.C. § 2255” - and the discussion
of the appeal waiver at the plea hearing by the Court,
Movant, and Respondent's counsel. (Doc. 199 at 1-2, 5-7.)
The R&R also discussed the law governing the
enforceability of appeal waivers. (Id. at 3-4.)
Movant does not dispute the terms of the appeal waiver or the
applicable law. (See Docs. 198, 198-1, 201.)
fact, Movant knew when he filed his § 2255 motion that
the appeal waiver was an obstacle in his path. His direct
appeal was dismissed because of the appeal waiver. (Doc. 191;
Doc. 198-1 at 2.) When he later prepared his brief in support
of his § 2255 motion, Movant discussed the law governing
appeal waivers and how to avoid them. (Doc. 198-1 at 3-5.)
primary way to avoid a waiver is to show that one did not
agree to the waiver voluntarily or with full knowledge of its
consequences because of the ineffective assistance of
counsel. See Patel v. United States, 252 Fed.Appx.
970, 974 (11th Cir. 2007) (holding that appeal waiver did not
bar § 2255 movant's claim that “explicitly
challenge[d] the validity of his guilty plea” on the
basis of ineffective assistance of counsel). Movant learned
that law and made that very argument - that his appeal waiver
was the product of ineffective assistance of counsel - in his
§ 2255 motion. (Docs. 198, 198-1.)
researching the law on avoiding appeal waivers and including
that law in his § 2255 motion, Movant did not include
what he did not need to research: the facts supporting his
claim that it was his lawyer's ineffectiveness that
caused him to do what he now says he did not want to do -
agree to the appeal waiver. In his § 2255 motion and
supporting brief, Movant said only the following about
counsel's alleged ineffectiveness:
[C]ounsel proved to be ineffective assistance [sic] in the
critical stages of plea negotiations by not preserving
[Movant's] right to appeal. . . . .
Even though this Court may find that [Movant]
“knowingly and voluntary” [sic] waived his right
to appeal[, ] such a waiver does not preclude [Movant] from
pursuing his right to challenge “ineffective
assistance” of counsel . . . in contrast to the United
[S]tates Constitution and Sixth Amendment. . . . .
[T]here are many ways in which an agreement or accepting an
agreement, could be entered into without the requisite 
“knowledge of voluntariness”. Especially
agreements that are entered into upon the advise [sic] of
“ineffective assistance” of counsel's undo
[sic] coercion to get his client to agree to such a waiver of
right. [Movant] may have waived his appeal right. However[, ]
such a waiver is not enforceable based on his counsel['s]
deficient performance causing him prejudice to the out come
of his case.
. . . .
[D]ue to having ineffective assisatance [sic] of counel's
[sic] bad advise [sic] of leaving an appeal waiver included
in the plea agreement precluded an appeal (direct appeal),
challenging this matter.
198-1 at 3-4 (citation omitted).) Movant did not identify his
counsel's alleged “deficient performance, ”
the bad “advi[c]e” his counsel allegedly gave
him, or any discussions he had with his ...