Appellate Waiver of Direct/Collateral Review

[This case summarized by Felicia Sarner.]

US v. Mabry, 536 F.3d 231 (3d Cir. July 28, 2008). Mabry's guilty plea agreement, in which he pled guilty to the drug charge in exchange for dismissal of the remaining charges, included an appellate waiver of direct and collateral review. After his sentencing, he filed a habeas petition alleging that counsel was ineffective for failing to file a direct appeal, which the district court denied without a hearing. The Third Circuit granted a certificate of appealability as to whether the waiver was knowing and voluntary, whether it is enforceable, and whether Mabry was entitled to relief on the claims he asserts should have been raised on direct appeal. The Circuit found the direct appeal and collateral review waivers to be knowing and voluntary, and although the district court's colloquy did not elaborate on the miscarriage of justice exception, enforcement of both waivers did not work a miscarriage of justice. Mabry raised only insubstantial issues to raise on direct appeal and did not identify any non-frivolous ground for direct appeal or collateral attack. While Mabry contended that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), there is a presumption of prejudice in counsel's failure to file a direct appeal that entitled him to an evidentiary hearing, the Circuit rejected that because Flores-Ortega did not address whether the presumption controls where the defendant has waived his right to appellate and collateral review, and the validity of the waiver is a threshold issue.