16-4107(L) Cook v. United States
United States Court of Appeals for the Second Circuit
August Term 2020
Submitted: February 3, 2021 Decided: October 16, 2023
Nos. 16-4107(L), 19-3773(Con), 19-3790(Con), 19-3807(Con), 19-3813(Con), 19-3899(Con)
DEREK COOK, CHAD EDWARDS, BRIAN LATULIPE, ANSON EDWARDS, BRYAN HERNE, KAIENTANORON L. SWAMP,
Petitioners-Appellants,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of New York Nos. 08-cr-355, 14-cv-1282, David N. Hurd, Judge.
Before: JACOBS, SULLIVAN, and BIANCO, Circuit Judges.
Petitioners-Appellants appeal from orders of the district court (Hurd, J.) denying their petitions for habeas relief pursuant to 28 U.S.C. § 2255, following their 2012 convictions for conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and use of a firearm in furtherance of a crime of violence – specifically, the Hobbs Act robbery conspiracy – that caused the death of another person, in violation of 18 U.S.C. § 924(c) and (j). On appeal, Petitioners contend that the district court erroneously enforced the collateral-attack waivers in their plea agreements, which they argue are unenforceable in light of Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). Because subsequent changes in the law do not allow Petitioners to back out of their valid agreements with the government, the waivers are enforceable. Accordingly, we DISMISS the appeal.
APPEAL DISMISSED.
James P. Egan, Assistant Federal Public Defender, Syracuse, NY, for Petitioners-Appellants Derek Cook, Chad Edwards, Brian Latulipe, Anson Edwards, Bryan Herne, Kaientanoron L. Swamp.
Michael F. Perry, Carina H. Schoenberger, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY, for Respondent-Appellee United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
Petitioners-Appellants – Derek Cook, Chad Edwards, Brian Latulipe, Anson
Edwards, Bryan Herne, and Kaientanoron L. Swamp – appeal from orders of the
district court (Hurd, J.) denying their petitions for habeas relief pursuant to 28
U.S.C. § 2255, following their 2012 convictions for conspiracy to commit Hobbs
Act robbery, in violation of 18 U.S.C. § 1951, and use of a firearm in furtherance of
a crime of violence – specifically, the Hobbs Act robbery conspiracy – that caused
2 the death of another person, in violation of 18 U.S.C. § 924(c) and (j). On appeal,
Petitioners contend that the district court erroneously enforced the
collateral-attack waivers in their plea agreements, which they argue are
unenforceable in light of Johnson v. United States, 576 U.S. 591 (2015), and United
States v. Davis, 139 S. Ct. 2319 (2019). Because subsequent changes in the law do
not allow Petitioners to back out of their valid agreements with the government,
the waivers are enforceable. Accordingly, we DISMISS the appeal. 1
I. BACKGROUND
Under virtually identical plea agreements, Petitioners pleaded guilty to two
criminal charges: conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a), and using a firearm in furtherance of a crime of violence that
caused the death of another person, in violation of 18 U.S.C. § 924(c) and (j). In
their respective agreements, and in exchange for the government’s promise not to
bring any further criminal charges related to the conduct underlying the
conspiracy, Petitioners waived several rights, including the right to appeal and –
1The decision in this case was delayed by the panel’s need to await its turn in a queue of cases pending in this Circuit resolving whether a waiver of the right to appeal or collaterally attack a section 924(c) conviction is enforceable following the Supreme Court’s rulings in Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). Since the cases ahead of us in the queue ultimately did not reach the issue, we address it here as a matter of first impression in this Circuit.
3 as especially relevant here – the right to collaterally attack their convictions and
sentences under 28 U.S.C. § 2255, so long as the sentence imposed did not exceed
an agreed-upon term of imprisonment specified in the plea agreement. The
district court held separate change-of-plea hearings for each Petitioner and later
sentenced each below the agreed-upon sentencing range. Consistent with the plea
agreements, none of the Petitioners appealed.
Three years later, after the Supreme Court held in Johnson that the residual
clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
was unconstitutionally vague, 576 U.S. at 597, Petitioners filed these section 2255
motions. Petitioners argued that, if the residual clause of the ACCA is
unconstitutional, then the similarly worded residual clause under
section 924(c)(3)(B) must be as well. 2 Based on that premise, Petitioners
maintained that their convictions for conspiracy to commit Hobbs Act robbery no
longer qualified as a “crime of violence,” removing the sole predicate for their
section 924(c) convictions. The district court denied Cook’s motion first,
2 Section 924(c)(3)(B) provides: “For purposes of this subsection the term ‘crime of violence’ means an offense that is a felony and . . . that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B). By comparison, section 924(e)(2)(B)(ii) provides, in relevant part: “the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year” that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
4 concluding that it was barred by the collateral-attack waiver in his plea agreement
and, alternatively, that conspiracy to commit Hobbs Act robbery was a “crime of
violence” under then-existing Circuit precedent. While the remaining petitions
for relief were pending, the Supreme Court issued Davis, holding that
section 924(c)’s residual clause was unconstitutional, 139 S. Ct. at 2336, and
implicitly requiring the government to prove that a defendant’s conduct satisfied
the statute’s elements clause. In the wake of Davis, we held that conspiracy to
commit Hobbs Act robbery no longer qualified as a “crime of violence.” See United
States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), abrogated on other grounds by
Lora v. United States, 599 U.S. 453 (2023). The district court subsequently denied
the remaining petitions, relying exclusively on the fact that Petitioners had waived
their right to collateral review. After Petitioners appealed, we issued certificates
of appealability on the issue of “whether [Petitioners’] waiver[s] of the right to
challenge [their] 18 U.S.C. § 924(c) conviction[s] should be enforced, and, if not,
whether [their] § 924(c) conviction[s] should be vacated.” No. 16-4107(L), Doc. No.
46; No. 19-3773(Con), Doc. No. 21; No. 19-3790(Con), Doc. No. 25; No.
19-3807(Con), Doc. No. 22; No. 19-3813(Con), Doc. No. 22; No. 19-3899(Con), Doc.
No. 21.
5 II. STANDARD OF REVIEW
We review de novo whether a plea agreement’s collateral-attack waiver
precludes a motion to vacate a conviction. See United States v. Green, 897 F.3d 443,
447 (2d Cir. 2018).
III. DISCUSSION
A waiver of the right to collaterally attack a conviction is presumptively
enforceable. See United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017). Such waivers
must be enforced because, if they are not, “the covenant . . . becomes meaningless
and would cease to have value as a bargaining chip in the hands of defendants.”
United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995). The exceptions to the
presumption of enforceability “occupy a very circumscribed area of our
jurisprudence.” United States v. Borden, 16 F.4th 351, 354–55 (2d Cir. 2021) (internal
quotation marks omitted). We have recognized only five circumstances where we
will not enforce a waiver: “(1) where the waiver was not made knowingly,
voluntarily, and competently; (2) where the sentence was based on
constitutionally impermissible factors, such as ethnic, racial[,] or other prohibited
biases; (3) where the government breached the agreement containing the waiver;
. . . (4) where the district court failed to enunciate any rationale for the defendant’s
6 sentence,” Burden, 860 F.3d at 51 (internal quotation marks omitted); and (5) where
the waiver “was unsupported by consideration,” United States v. Lutchman, 910
F.3d 33, 38 (2d Cir. 2018). Here, Petitioners argue that we should decline to enforce
the waivers because (1) Petitioners did not knowingly and voluntarily waive their
right to collaterally attack their convictions, and (2) holding Petitioners to their
waivers would be unconscionable when the predicate crime on which their section
924(c) convictions were based – conspiracy to commit Hobbs Act robbery – is no
longer a “crime of violence” in light of Davis and Barrett. We address each of these
arguments in turn.
A. Petitioners’ Pleas Were Knowing and Voluntary.
Petitioners Chad Edwards, Brian Latulipe, and Anson Edwards now
contend, for the first time, that the district court’s remarks at sentencing misled
them into believing that they were not relinquishing their right to challenge their
convictions, rendering their pleas involuntary and unknowing in violation of
Rule 11 of the Federal Rules of Criminal Procedure. 3 We disagree.
3Contrary to the government’s contention, Petitioners’ challenge to the voluntariness of their waivers falls squarely within the scope of the certificates of appealability issued in these consolidated appeals. We granted certificates of appealability to consider “whether [Petitioners’] waiver[s] of the right to challenge [their] 18 U.S.C. § 924(c) conviction[s] should be enforced.” No. 16-4107(L), Doc. No. 46; No. 19-3773 (Con), Doc. No. 21; No. 19-3790 (Con), Doc. No. 25; No. 19-3807(Con), Doc. No. 22; No. 19-3813 (Con), Doc. No. 22; No. 19-3899 (Con), Doc. No. 21.
7 For starters, Petitioners’ challenge to the voluntariness of their plea
agreements is untimely. Ordinarily, a habeas petition must be filed within one
year of the date on which the petitioner’s conviction became final. 28 U.S.C.
§ 2255(f)(1). Petitioners could have raised a challenge to the voluntariness of their
pleas at the time of their plea proceedings, on direct appeal, in a timely filed habeas
petition, or in an amended habeas petition that relates back to a timely petition.
Petitioners did none of those things. Because Petitioners offer no explanation for
why they waited until now – on appeal from the district court’s denial of their
habeas petitions and years after the one-year deadline – to challenge the
voluntariness of the collateral-attack waivers that they executed in 2012, their
challenge is untimely. See, e.g., McCloud v. United States, 987 F.3d 261, 267 (2d Cir.
2021) (affirming district court’s dismissal of untimely section 2255 petition); Nunez
v. United States, 954 F.3d 465, 467 (2d Cir. 2020) (same); Moshier v. United States, 402
F.3d 116, 118 (2d Cir. 2005) (denying certificate of appealability to petitioner who
made untimely section 2255 petition). And even if we construed Petitioners’ new
voluntariness challenge as an amended habeas petition, it would still be untimely
Because a waiver is unenforceable when it is made involuntarily or without full knowledge of the rights being waived, see Burden, 860 F.3d at 51, the text of our orders granting the certificates of appealability encompasses Petitioners’ arguments in this regard.
8 because it is based on facts – specifically, the district court’s sentencing colloquies
– that do not relate back to Petitioners’ timely habeas petition. See Mayle v. Felix,
545 U.S. 644, 650 (2005) (“An amended habeas petition, we hold, does not relate
back (and thereby escape AEDPA’s one-year time limit) when it asserts a new
ground for relief supported by facts that differ in both time and type from those
the original pleading set forth.”).
But even if we were to assume the timeliness of Petitioners’ Rule 11
argument, it would still fail. At their respective plea hearings, each of the three
Petitioners stated that he had read and signed the agreement, the terms of which
included an express waiver of “any and all rights . . . to appeal or collaterally attack
his conviction and any sentence,” so long as the sentence imposed fell within the
sentencing range stipulated by the parties. C. Edwards App’x at 26; see also
Latulipe App’x at 32; A. Edwards App’x at 27. Petitioners also confirmed that they
had reviewed the agreement with counsel and that all their questions about the
agreement had been answered.
To be sure, the district court, during its colloquy with Chad Edwards,
described the waiver as one that relinquished the right to collaterally attack any
sentence imposed below a certain threshold, without mentioning that the waiver
9 also prohibited him from challenging his underlying conviction. But the court’s
omission of one aspect of the waiver did not inject ambiguity into the plea
agreement’s otherwise clear terms. In fact, we previously rejected a similar
argument where the court failed to mention the waiver provision altogether. In
Sanford v. United States, we held that a plea was knowing and voluntary where the
agreement included an explicit waiver of the right to bring postconviction
challenges, even though the district court “did not specifically mention that [the
defendant] had waived the right to ‘otherwise challenge’ the conviction or
sentence (i.e., collaterally attack them).” 841 F.3d 578, 581 (2d Cir. 2016). Like the
plea agreement in Sanford, the plea agreements here include a provision
“waiv[ing] any and all rights, including those conferred by . . . 28 U.S.C. § 2255 . . .
[to] collaterally attack [the] conviction and any sentence of imprisonment,” so long
as the sentence imposed fell below a stipulated length. C. Edwards App’x at 26;
see also Latulipe App’x at 32; A. Edwards App’x at 27. Considering that each
Petitioner confirmed that he had “talked with his lawyer about the plea agreement
and signed it, and there being no evidence indicating that [Petitioners were]
coerced or misunderstood any of the relevant facts,” Sanford, 841 F.3d at 581, we
see no reason to reach a different result here.
10 Latulipe and Anson Edwards make a slightly different argument, asserting
that the district court’s characterization of Petitioners’ plea agreements during
their colloquies – as waiving the right to appeal or collaterally attack only their
sentences – contradicted Petitioners’ plea agreements. But even assuming the
district court’s shorthand reference to the waiver provisions in the plea
agreements was error, it in no way renders Petitioners’ waivers involuntary or
unknowingly made. Under the plain error standard, which we apply because
Petitioners did not raise the error in the district court, Petitioners can only benefit
from the district court’s allegedly erroneous description of the waivers if they can
show that there was “a reasonable probability that, but for the error, [they] would
not have entered the plea.” United States v. Lloyd, 901 F.3d 111, 119 (2d Cir. 2018)
(internal quotation marks omitted). By the time of their colloquies, Petitioners had
already reviewed the terms of their plea agreements, which plainly stated that
Petitioners were waiving their right to bring any postconviction challenges to
either their convictions or sentences, had already discussed those terms with
counsel, and had already signed the agreements. Nothing in the record suggests
that Petitioners were affirmatively misled by the colloquies, Zhang v. United States,
506 F.3d 162, 164 (2d Cir. 2007), or that their decisions to plead guilty turned on
11 the district court’s description of the written waiver terms that Petitioners
themselves had read and reviewed with counsel. As a result, they have failed to
establish that their pleas were involuntary or unknowingly made.
B. Even in the Face of Evolving Judicial Precedent, Petitioners’ Waivers Are Enforceable.
Petitioners next argue that even if their collateral-attack waivers were
knowingly and voluntarily executed, it would be inequitable to enforce them
where a favorable change in law – here, the Supreme Court’s holdings in Johnson
and Davis – creates new legal theories on which to attack their underlying
convictions. While we have not yet considered the precise question of whether
collateral-attack waivers are enforceable in the wake of Johnson and Davis, we have
made clear that such waivers are generally enforceable in the face of “evolving
judicial precedent.” United States v. Morgan, 406 F.3d 135, 137 n.3 (2d Cir. 2005).
As we noted nearly two decades ago, “the possibility of a favorable change in the
law after a plea is simply one of the risks that accompanies pleas and plea
agreements.” Id. at 137. This principle follows from the fact that plea agreements,
like all contracts, allocate risk between the parties – and we are not free to disturb
the bargain the parties strike.
12 Our decision in Sanford – in which we held that a defendant’s waiver of his
right to collaterally attack his sentence remained enforceable even where his
sentence was based on a Guidelines provision later held to be unconstitutional –
reinforces this point about the continuing viability of plea agreements. See 841
F.3d at 580. While Sanford involved a change in law governing a defendant’s
sentence, our reasoning in that case applies with equal force to changes in the law
that impact convictions. The enforceability of a collateral-attack waiver turns on
whether the petitioner’s plea was knowing and voluntary, not the nature of any
subsequent legal developments. In fact, other Circuits to address this issue since
Davis have come to the same conclusion. See King v. United States, 41 F.4th 1363,
1370 (11th Cir. 2022) (rejecting petitioner’s Davis challenge to conviction and
sentence because, “[b]ut for a few narrow exceptions, a defendant [who] waives
the right to collaterally attack his sentence is bound by that decision,” and
“[defendant’s] Davis claim is no exception”); Portis v. United States, 33 F.4th 331,
335 (6th Cir. 2022) (rejecting petitioner’s Davis challenge to conviction because
“waivers of the right to bring postconviction challenges remain enforceable after
changes in law, here the Davis decision”); United States v. Goodall, 21 F.4th 555, 562
(9th Cir. 2021) (rejecting defendant’s appeal of conviction because, “[w]hen a
13 defendant waives his appellate rights, he knows that he is giving up all appeals,
no matter what unforeseen events may happen”); Oliver v. United States, 951 F.3d
841, 848 (7th Cir. 2020) (rejecting defendant’s Davis challenge to conviction and
sentence because “normal constitutional challenges to a statute of conviction fall
comfortably within the permissible scope of valid waivers like the ones here”).
Petitioners counter that they have a “due process right not to be convicted
of a non-existent offense.” Cook Br. at 14. But the question is not whether
Petitioners have a right not to be convicted of a non-existent offense. It is whether
Petitioners have a right to bring a collateral attack when, in exchange for valid
consideration, they executed binding plea agreements admitting their criminal
conduct and waiving their ability to challenge the resulting convictions. And on
that score, our precedent is clear that “ignorance of future rights is unavoidable
and not a basis for avoiding a plea agreement.” United States v. Haynes, 412 F.3d
37, 39 (2d Cir. 2005). 4
4 This case does not require us to decide whether a collateral-attack waiver would be unenforceable in the event of a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974). Unlike the petitioner in Davis, who argued that his conviction for draft evasion was based on “an act that the law d[id] not make criminal,” id., the defendants here admitted to having engaged in an armed robbery of a drug dealer in which the victim was gunned down. That conduct was prohibited by a number of criminal statutes – including 21 U.S.C. § 846 (drug conspiracy), 21 U.S.C. § 846 & 18 U.S.C. § 2 (attempted possession with intent to distribute marijuana), and 18 U.S.C. § 1951 (substantive Hobbs Act Robbery) – none of which was affected
14 At bottom, a waiver of the right to bring a postconviction challenge is
presumptively enforceable, even after the legal landscape shifts. A defendant who
wishes to maintain his right to collaterally attack his conviction in the event of
unforeseen legal developments may, of course, attempt to negotiate more
favorable waiver terms with the government before pleading guilty. But where
the waiver itself is clear, unambiguous, knowingly and voluntarily entered, and
supported by consideration – here, the government’s agreement not to pursue
charges or arguments that could have resulted in a much higher sentence – the
terms of the plea agreements must be enforced.
III. CONCLUSION
For the foregoing reasons, we conclude that Petitioners’ collateral-attack
waivers are enforceable, and we therefore DISMISS Petitioners’ appeals.
by the Supreme Court’s intervening precedents and each of which would have supported a section 924(c) conviction. Had the parties anticipated the Supreme Court’s intervening caselaw, they surely would have structured the plea agreement to reach the same ultimate result. “It is not a miscarriage of justice to refuse to put [the defendants] in a better position than they would have been in if all relevant actors had foreseen [the Supreme Court’s change in law].” Oliver v. United States, 951 F.3d 841, 847 (7th Cir. 2020).