United States District Court, S.D. Georgia, Savannah Division
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion to Set
Bond Pending Appeal and Stay the Execution of Judgment. (Doc.
43.) The Court held a hearing on Defendant's Motion on
March 6, 2019. For the reasons stated at the hearing and
summarized below, the Court DENIES
hearing, the Court explained that Defendant's Motion must
be analyzed under 18 U.S.C. § 3143(b), rather than the
statute cited in Defendant's Motion, 18 U.S.C. §
3142. The Court then further explained that, under Section
3143(b), Defendant carries the burden of demonstrating that
her appeal demonstrates a substantial question of law or fact
likely to result in reversal, an order for a new trial, a
sentence that does not include a term of imprisonment, or a
reduced sentence of imprisonment. 18 U.S.C. §
3143(b)(B); see also, United States v.
Henderson, No. 1:15-CR-072, 2016 WL 7383316, at *1 (S.D.
Ga. Dec. 20, 2016) (“[A] ‘substantial
question' is one of more substance than would be
necessary to a finding that it was not frivolous. It is a
‘close' question or one that very well could be
decided the other way.” (quoting United States v.
Giancola, 754 F.2d 898, 901 (11th Cir. 1985). Further,
“to be a ‘substantial question,' it must be
one which may properly be raised on appeal.”
Giancola, 754 F.2d at 901, n.4.
motions hearing, the Court provided Defendant's counsel
with the opportunity to identify such a “substantial
question” but counsel was unable to do so. The only
question that counsel identified which Defendant intends to
raise on appeal is a vague issue of ineffective assistance by
her prior counsel. However, this claim appears to be barred
by the appeal waiver in her plea agreement, contradicted by
Defendant's sworn testimony at her change of plea
hearing, and not proper for consideration on direct appeal.
defendant enters a guilty plea pursuant to Rule 11
proceedings, “there is a strong presumption that the
statements made during the colloquy are true” and her
plea is knowing and voluntary. United States v.
Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir.
1987). It is well-settled that a waiver of appeal and
collateral attack provisions contained in a plea agreement is
enforceable if the waiver is knowing and voluntary.
United States v. Johnson, 541 F.3d 1064, 1066 (11th
Cir. 2008) (citing United States v. Weaver, 275 F.3d
1320, 1333 (11th Cir. 2001)). “A waiver of the right to
appeal includes a waiver of the right to appeal difficult or
debatable legal issues-indeed, it includes a waiver of the
right to appeal blatant error.” United States v.
Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
“Waiver would be nearly meaningless if it included only
those appeals that border on the frivolous.” Brown
v. United States, 256 Fed.Appx. 258, 261-62 (11th Cir.
2007). As explained at the motions hearing, the Court
conducted an extensive plea colloquy with Defendant to
establish that her decision to plead guilty was knowingly,
voluntarily, and intelligently made. (Doc. 41.) The Court
need not rehash that colloquy in this Order. However, the
Court noted that it went over Defendant's appeal waiver
in detail with her at her change of plea hearing and
Defendant testified, under oath, that she understood the
appeal waiver, that she was willing to agree to waiver her
right to appeal as part of her plea agreement, that she had
adequate time to discuss the appeal waiver with her counsel
before entering her plea agreement, that her counsel
sufficiently explained her appeal rights to her, and that her
counsel sufficiently explained her waiver of appellate rights
to her. (Doc. 41, pp. 29-31.) Further, Defendant's appeal
waiver is laid out in detail in the plea agreement which
Defendant testified she read, understood, and signed. Thus,
it is clear that “(1) the district court specifically
questioned the defendant about the provision during the plea
colloquy, or (2) it is manifestly clear from the record that
the defendant fully understood the significance of the
waiver.'” United States v. Mottola, 394
Fed.Appx. 567, 568 (11th Cir. 2010) (quoting United
States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir.
at the change of plea hearing, Defendant repeatedly testified
that she was satisfied with her counsel, that no one had
promised or guaranteed her a sentence, that counsel was not
forcing her to plead guilty, that she fully discussed her
case with her lawyer, that he had reviewed discovery, the
government's theory of the case, and potential defenses
with her, that she communicated with him “two, three
times a week, sometimes more, ” that he went over her
complete plea agreement with her before she signed it, and
that she had no complaints about his representation
“whatsoever.” (Id. at pp. 16, 11-12, 23,
37.) Considering these sworn representations, Defendant's
vague appellate argument of ineffective assistance does not
appear to present a “close question.”
“except in the rare instance when the record is
sufficiently developed, [the Eleventh Circuit Court of
Appeals] will not address claims for ineffective assistance
of counsel on direct appeal.” United States v.
Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008)
(quotations omitted). “Instead, an ineffective
assistance of counsel claim is properly raised in a
collateral attack on the conviction under 28 U.S.C. §
2255.” Merrill, 513 F.3d at 1308 (quotations
and brackets omitted); see also Massaro v. United
States, 538 U.S. 500, 504-505 (2003) (“[I]n most
cases a motion brought under § 2255 is preferable to
direct appeal for deciding claims of ineffective assistance.
When an ineffective-assistance claim is brought on direct
appeal, appellate counsel and the court must proceed on a
trial record not developed precisely for the object of
litigating or preserving the claim and thus often incomplete
or inadequate for this purpose.”). Here, Defendant has
not demonstrated that this case presents the “rare
instance” where the record is sufficiently developed
for Defendant to pursue her claims of ineffective assistance
of counsel on direct appeal.
these reasons and those stated on the record at the hearing,
Defendant has failed to carry her burden to show a
“substantial question” presented by her appeal as
required by Section 3143(b). Thus, the Court
DENIES Defendant's Motion to Set Bond
Pending Appeal and Stay the Execution of Judgment. As ordered
previously, Defendant shall surrender for the service of her
sentence to the institution designated by the Bureau of
Prisons before 2:00 p.m. on March 7, 2019.