United States v. Hayes

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 26, 1998
• Docket: 18-20801
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-60287

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY L HAYES,

Defendant - Appellant.

Appeal from the United States District Court For the Southern District of Mississippi (1:96-CV-628)

March 19, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Anthony L. Hayes, a federal prisoner (#03375043), appeals the

district court’s denial of his 28 U.S.C. § 2555 motion to vacate,

correct, or set aside his sentence. The district court granted

Hayes a certificate of appealability (COA) on the issues whether

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. his guilty plea was invalid because it (1) resulted from

ineffective assistance of counsel, (2) deprived him of his right to

appeal, (3) was coerced by the government, and (4) violated his

right to a jury trial.

Hayes contends that his waiver of the right to appeal was not

knowing and voluntary and, therefore, that his guilty plea was

invalid. Because Hayes testified at the Rule 11 colloquy that he

had read and discussed the agreement with his attorney, understood

it to be the entire agreement with the government, and had

completed school through the eighth grade and could read and write,

the district court found that Hayes read and understood the

Memorandum of Understanding between the government and him. Hayes

has thus failed to show that the district court erred in concluding

that he knowingly and voluntarily waived his right to appeal. See

United States v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994)

(holding that “when the record of the Rule 11 hearing clearly

indicates that a defendant has read and understands his plea

agreement, and that he raised no question regarding a waiver-of-

appeal provision, the defendant will be held to the bargain to

which he agreed, regardless of whether the court specifically

admonished him concerning the waiver of appeal”).

Hayes also asserts that his guilty plea was invalid because it

was coerced by the prosecutor’s threats to prosecute Hayes’ sister

and girlfriend for their participation during and after Hayes’

-2- escape from the Harrison County Detention Center. Because Hayes

has failed to demonstrate that the prosecutor’s threats were made

in bad faith or that the prosecution lacked probable cause to

indict these women, he has failed to carry his heavy burden of

demonstrating that his guilty plea was coerced by these threats.

See United States v. Diaz, 733 F.2d 371, 375 (5th Cir. 1984);

United States v. Nuckols, 606 F.2d 566, 568 (5th Cir. 1979).

Hayes asserts that his Sixth Amendment right to effective

assistance of counsel was violated because his counsel advised and

allowed him to waive his right to appeal. He asserts that such a

waiver is unconstitutional, that counsel was not familiar with the

case law concerning such waivers, and that there are factors

showing that Hayes did not understand the provision. As part of

the plea agreement, Hayes agreed to waive his right to appeal his

sentence if the court accepted the government’s sentencing

recommendations, but he reserved the right to appeal sentencing

errors if the court did not. The court accepted the government’s

recommendations, and Hayes does not assert any sentencing errors.

The right to appeal a criminal conviction is a statutory, not a

constitutional, right that may be waived. See United States v.

Henderson, 72 F.3d 463, 465 (5th Cir. 1995); United States v.

Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Even assuming that

counsel’s performance was deficient, Hayes has failed to

demonstrate that he was prejudiced by counsel’s allegedly deficient

-3- performance. See Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); DeVille v. Whitley, 21

F.3d 654, 659 (5th Cir. 1994); Diaz, 733 F.2d at 376.

The district court also granted a COA on the issue whether

Hayes’ guilty plea was invalid because it violated his

constitutional right to a jury trial. Pursuant to a guilty plea,

a defendant may waive the right to trial by jury, and such waivers

are valid if the plea agreement is entered into knowingly and

voluntarily. See Diaz v. Martin, 718 F.2d 1372, 1376 (5th Cir.

1983). The district court found that Hayes’ guilty plea was

entered into knowingly and voluntarily, and the record demonstrates

that the judge at the Rule 11 colloquy specifically admonished

Hayes concerning the waiver of right to jury trial. Hayes has thus

failed to show that he did not voluntarily and knowingly waived his

right to jury trial. See id.

In addition to the claims on which the district court granted

a COA, Hayes argues on appeal that the factual basis was

insufficient to support his guilty plea, that the indictment was

defective, and that the government arrested him pursuant to

entrapment. We deny Hayes request for a COA as to these other

issues because Hayes has failed to make a substantial showing of

the violation of a constitutional right. See 28 U.S.C. § 2253(c).

Finally, Hayes asserts for the first time in his reply brief that

counsel was ineffective for advising and allowing him to plead

-4- guilty to crimes that never occurred. This issue was not raised in

the district court or in Hayes’ original appellate brief and

therefore will not be considered by this court. See United States

v. Anderson, 5 F.3d 795, 801 (5th Cir. 1993).

AFFIRMED.

-5-