United States of America v. Dayon Fips also known as Dayon Ballard

St. Louis, MO - Criminal defense lawyer represented defendant with arguing that he received constitutionally ineffective assistance from prior counsel charge.

We consider de novo "issues concerning the interpretation and enforcement

of a plea agreement and the application of appeal waivers.” United States v.

Dallman, 886 F.3d 1277, 1280 (8th Cir. 2018). We will enforce an appeal waiver

and dismiss the appeal if: (1) the appeal falls within the scope of the waiver; (2) the

plea agreement and waiver were entered into knowingly and voluntarily; and

(3) enforcing the waiver will not cause a miscarriage of justice. Id. at 1279-80;

United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011). These conditions are

satisfied here.

First, Fips's ineffective-assistance claim falls within the scope of his appeal

waiver. "We interpret plea agreements according to their plain language,” United

States v. Manzano-Huerta, 809 F.3d 440, 444 (8th Cir. 2016), and "we apply general

contract principles and try to discern the intent of the parties as expressed in the plain

language of the agreement when viewed as a whole,” United States v. Lara-Ruiz,

681 F.3d 914, 919 (8th Cir. 2012) (internal quotation marks omitted). In the directappeal subsection of the Waiver Provision, Fips waived his right to raise on direct

appeal "all non jurisdictional . . . issues,” and no exception was made in this

subsection for ineffective-assistance claims. By comparison, in the habeas corpus

subsection of the Waiver Provision, Fips waived "all rights to contest the conviction

or sentence in any post-conviction proceeding . . . except for claims of . . . ineffective

assistance of counsel.” Particularly in light of the absence of a carveout for

ineffective-assistance claims in the direct-appeal subsection despite the inclusion of

such a carveout in the habeas corpussubsection, we have no trouble concluding that,

by the expansive plain language of the direct-appeal subsection, Fips waived the

right to bring an ineffective-assistance claim on direct appeal unless it somehow

implicated a jurisdictional issue. Fips claims only that his prior counsel's ineffective

-3-

assistance compromised his ability to litigate the merits of his defense, which does

not implicate a jurisdictional issue, so his ineffective-assistance claim is within the

scope of the appeal waiver.

Second, Fips knowingly and voluntarily agreed to the appeal waiver. During

the plea colloquy, the district court specifically discussed, and asked Fips under oath

if he understood, various provisions of the plea agreement, including the Waiver

Provision. Fips explicitly acknowledged he understood. The district court also

asked Fips under oath if he entered into the plea agreement voluntarily, and Fips

confirmed he did. "[Fips's] sworn testimony at the plea hearing shows that he

entered into the plea agreement, and the appeal waiver, knowingly and voluntarily.”

United States v. Sohl, 632 F. App'x 302, 302 (8th Cir. 2016) (per curiam); see also

Boroughf, 649 F.3d at 890 ("[O]ur review of the transcript from the change-of-plea

hearing shows the plea agreement and appeal waiver were entered into knowingly

and voluntarily.”).

Third, enforcing the appeal waiver will not result in a miscarriage of justice,

which is a "very narrow exception to the general rule that waivers of appellate rights

are enforceable.” See United States v. Blue Coat, 340 F.3d 539, 542 (8th Cir. 2003).

"[O]rdinarily, we do not address claims of ineffective assistance of counsel on direct

appeal” anyway, but instead we require such claims to be raised in postconviction

proceedings. United States v. Adkins, 636 F.3d 432, 434 (8th Cir. 2011). The plea

agreement leaves that option open to Fips, so he is not without recourse to pursue

his ineffective-assistance claim if we follow our usual rule and refuse to consider

this claim now. See United States v. Vondal, 394 F. App'x 336, 337 (8th Cir. 2010)

(per curiam) (enforcing an appeal waiver and declining to consider an ineffectiveassistance claim within the scope of that waiver because, inter alia, "ineffectiveassistance claims are more properly raised in a proceeding under 28 U.S.C. § 2255,

and [the defendant] reserved her right to do so” (citation omitted)).

-4-

Granted, we have suggested that, under this miscarriage-of-justice exception,

we may consider on direct appeal an ineffective-assistance claim otherwise within

the scope of an appeal waiver when the claim is that "the plea agreement itself is the

result of advice outside the range of competence demanded of attorneys in criminal

cases.” DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir. 2000) (internal

quotation marks omitted); see also United States v. Andis, 333 F.3d 886, 891 (8th

Cir. 2003) (en banc) (citing DeRoo as an example of when the miscarriage-of-justice

exception may apply). But Fips's claim, based on conduct of prior counsel who did

not represent him when he entered into the plea agreement, is not this kind of

ineffective-assistance claim.

Therefore, we enforce Fips’s appeal waiver and dismiss this appeal.