Walter Hardin v. USA

Filing

OPINION filed : AFFIRMED, decision not for publication. Deborah L. Cook, Authoring Circuit Judge; Helene N. White, Dissenting Circuit Judge; and Laurie J. Michelson, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0905n.06
Case No. 13-5835
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
WALTER EDWARD HARDIN,

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Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

Dec 08, 2014
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

BEFORE: COOK and WHITE, Circuit Judges; MICHELSON, District Judge.*
COOK, Circuit Judge. Walter Edward Hardin appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate his sentence. Because Hardin waived his right to collaterally
attack his sentence, we AFFIRM the district court’s judgment.
I.
Hardin pleaded guilty in 2009 to receiving child pornography and to using a facility and
means of interstate commerce to attempt to coerce and entice a minor to engage in sexual
activity. As part of his plea agreement, he waived “the right to appeal and the right to attack
collaterally the guilty plea, conviction, and sentence, including any order of restitution” but

*

The Honorable Laurie J. Michelson, United States District Judge for the Eastern District
of Michigan, sitting by designation.

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reserved “the right to appeal any sentence greater than 120 months [sic] imprisonment.” (R. 21,
Plea Agreement ¶ 11.)
The district court sentenced Hardin to 240 months’ imprisonment, and Hardin appealed.
We rejected Hardin’s challenges to the procedural and substantive reasonableness of his
sentence, and declined to reach his claim that his counsel provided ineffective assistance at
sentencing. See generally United States v. Hardin, 437 F. App’x 469 (6th Cir. 2011). Hardin
specifically alleged that his counsel was ineffective in (1) failing to timely object to the
presentence report’s guidelines calculations, (2) failing to argue for a lower guidelines range at
the sentencing hearing, (3) withdrawing a motion for leave to file late objections and a motion
for a downward departure, and (4) failing to object to the court’s reliance on Hardin’s exgirlfriend’s hearsay statements to detectives. Id. at 471–72. The government, however, raised
the possibility that counsel withheld objections and withdrew the motions in exchange for the
government agreeing not to seek additional sentencing enhancements. Id. at 472–73. Finding
that we could not properly assess counsel’s motives on the existing record, we declined to
address Hardin’s ineffective-assistance-of-counsel claim on direct appeal. Id.
Hardin timely raised an ineffective-assistance-of-counsel claim in the instant 28 U.S.C.
§ 2255 motion.

The district court denied the motion, finding that Hardin knowingly and

voluntarily waived his right to seek post-conviction relief under § 2255. We granted a certificate
of appealability to consider whether Hardin waived his ineffective-assistance-of-counsel claim
through his broad waiver of collateral-attack rights.
II.
A defendant “may waive any right, even a constitutional right, by means of a plea
agreement.” United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001) (citations and
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internal quotation marks omitted). We enforce such waivers according to their terms, so long as
the defendant entered into the plea agreement knowingly and voluntarily. See, e.g., United
States v. Toth, 668 F.3d 374, 377–78 (6th Cir. 2012). Notably, in Davila v. United States, we
held that a defendant who knowingly and voluntarily agreed not to contest his sentence in any
post-conviction proceeding waived the right to argue in a § 2255 motion that his counsel
provided ineffective assistance at sentencing. 258 F.3d 448, 451 (6th Cir. 2001).
Hardin contends that, notwithstanding our holding in Davila, he did not knowingly or
voluntarily waive his right to collaterally attack his sentence on the ground that he received
ineffective assistance of counsel at sentencing. He advances two arguments, neither persuasive.
Hardin first argues that he reserved the right to file a § 2255 motion because his plea
agreement uses the general term “collateral attack” without mentioning § 2255 specifically. But
he cannot, and does not, deny that his § 2255 motion collaterally attacks his sentence. Moreover,
Hardin expressed no confusion about the meaning of “collateral attack” during his plea colloquy.
Rather, when the district court judge asked if he had discussed his plea agreement with counsel
and understood its terms, he answered “[y]es.”1 (R. 65, Rearraignment Tr. at 6.) He also
answered “[y]es” when the judge asked if the prosecutor’s description of the plea agreement,

1

For the first time in his reply brief, Hardin hints that his plea waiver might be invalid
because his attorney failed to ensure that he understood it. But Hardin forfeited any claim that
his counsel provided constitutionally ineffective assistance during plea negotiations. See United
States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001) (holding that claim raised for the first time in
a reply brief is generally forfeited); United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997)
(“Unless exceptional circumstances are present, we will not address an issue not first raised in
district court.”).
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including the waiver provisions, matched his understanding.2

(Id. at 12.)

In short,

notwithstanding Hardin’s assertions to the contrary, nothing in the record suggests that he did not
understand the terms of his plea agreement when he agreed to it. See United States v. Sharp, 442
F.3d 946, 951–52 (6th Cir. 2006) (enforcing an appellate waiver where the defendant testified on
the record that he read the plea agreement, understood its terms, and discussed it with counsel);
cf. United States v. Gardner, 417 F.3d 541, 544 (6th Cir. 2005) (finding that the district court
satisfied its duty to verify that a defendant’s plea was voluntary under Fed. R. Civ. P. 11 by
posing questions answerable with a simple “yes” or “no”).
Hardin also contends that in reserving his right to appeal any sentence exceeding 120
months, he “explicitly agreed to retain his right to collaterally attack any sentence greater than
120 months.” But the plain language of Hardin’s plea agreement belies this claim. See United
States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011) (explaining that this circuit interprets plea
agreements according to traditional contract law principles and construes ambiguities against the
government); see also Hamilton v. United States, 566 F. App’x 440, 443 (6th Cir. 2014) (“[T]he
most persuasive evidence of what a defendant reasonably appreciated as his bargain is found in
the plain language of the court-approved agreement.” (alteration in original) (quoting United
States v. Phibbs, 999 F.2d 1053, 1081 (6th Cir. 1993))); United States v. Beals, 698 F.3d 248,
256 (6th Cir. 2012) (“We must give effect to the intent of the parties as expressed by the plain
2

During the plea colloquy, the prosecutor described Hardin’s waiver provision thus:

In this case, the defendant has waived his right to appeal and collaterally attack
his guilty plea, conviction[,] and sentence, including any order of restitution. And
if there are known victims identified, there may be some order of restitution. The
defendant does reserve his right to appeal any sentence that the court would
impose that would be greater than one hundred twenty months.
(R. 65, Rearraignment Tr. at 10.)
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language of the plea agreement.”). The plea agreement reserves a limited “right to appeal any
sentence greater than 120 months” and expressly waives all collateral-attack rights. And the
waiver provision refers to “appeal” and “collateral attack” as separate concepts, precluding
Hardin’s argument for an implicit reading of “appeal” to include collateral attack. See United
States v. Linder, 552 F.3d 391, 393 n.1 (4th Cir. 1999).
III.
For these reasons, we AFFIRM.

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HELENE N. WHITE, Circuit Judge, dissenting.
I respectfully dissent. Although we may parse the terms of Hardin’s appellate waiver to
preclude this collateral attack, a reasonable defendant in Hardin’s position would not understand
himself to be precluded from challenging counsel’s effectiveness with respect to the sentencing. 1
To hold otherwise ignores the underlying assumption of the plea agreement—that Hardin would
forgo all rights to challenge a sentence of 120 months or less, and that he would preserve his
rights to challenge a greater sentence. Although Hardin did waive his right to collaterally attack
his conviction and sentence, he did so in the context of preserving his right to appeal a sentence
in excess of 120 months.
Hardin clearly reserved his right to appeal his 240-month sentence. When he exercised
that right and challenged his sentence on several bases, including that counsel was ineffective in
representing him at sentencing, we declined to entertain that aspect of his appeal and held that he
was required to challenge counsel’s performance in a § 2255 proceeding. Having attempted to
challenge counsel’s effectiveness at sentencing in his direct appeal, Hardin should not now be
barred from pursuing the same claim in this collateral proceeding.
Further, it is unreasonable to conclude that Hardin understood that his right to challenge
his 240-month sentence would depend on whether one reason for the sentence was that counsel
performed ineffectively, or that he understood that if counsel did perform ineffectively resulting
1

The Justice Department recently issued a memorandum instructing prosecutors to stop
seeking waiver of ineffective assistance of counsel claims. “Federal Prosecutors should no
longer seek in plea agreements to have a defendant waive claims of ineffective assistance of
counsel whether those claims are made on collateral attack or, when permitted by circuit law,
made on direct appeal.” Memorandum from U.S. Department of Justice, Office of the
Deputy Attorney General on Department Policy on Waivers of Claims of
Ineffective Assistance of Counsel
1
(Oct.
14,
2014)
available
at
http://www.justice.gov/sites/default/files/press-releases/attachments/2014/ 10/15/dept-policy-onwaivers-of- ineffective-assistance-ofcounsel.pdf.
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in a sentence greater than 120 months, his ability to challenge the sentence would depend on
whether the facts underlying counsel’s deficient performance were apparent on the record as it
would stand on direct appeal or whether it would require further factual development. Yet, that
is the consequence of the majority’s application of the waiver to this proceeding.
Davila v. United States, 258 F.3d 448 (6th Cir. 2001), is distinguishable. In that case,
Davila waived both his right to bring a motion under § 2255 and his right to appeal his
conviction and sentence unless the sentence exceeded the statutory maximum penalty or the
“guideline range deemed most applicable by the sentencing court.” Id. at 452. There was no
reservation of the right to appeal a sentence in excess of an agreed-upon term. Had Hardin been
sentenced to 120 months or less, Davila would apply and Hardin would be precluded from
bringing this collateral challenge.
I express no opinion on the merits of Hardin’s ineffective assistance at sentencing claim.
Indeed, it may be completely without merit, but Hardin did not waive his right to challenge his
240-month sentence on this basis. I would hold that the plea waiver does not preclude a § 2255
challenge to counsel’s effectiveness at sentencing to the extent that the alleged ineffective
assistance resulted in a sentence in excess of 120 months and remand for further proceedings
addressing the merits of Hardin’s challenge.

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