2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-15-2012

USA v. Delbridge

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1254

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Recommended Citation

"USA v. Delbridge" (2012). 2012 Decisions. Paper 167.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-1254

____________

UNITED STATES OF AMERICA

v.

MICHAEL DELBRIDGE, 

 Appellant

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-05-cr-00135-001)

District Judge: Honorable Arthur J. Schwab

____________

Submitted Under Third Circuit LAR 34.1(a)

October 23, 2012

Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

(Filed: November 15, 2012)

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Michael Delbridge was sentenced to a term of 188 months’ incarceration and five 

years of supervised release after pleading guilty to possession with intent to distribute 5 

grams or more of cocaine base. At issue in this appeal is the District Court’s order 
2

denying Delbridge’s motion to vacate sentence under 28 U.S.C. § 2255. We will affirm.

I

A grand jury in the Western District of Pennsylvania charged Delbridge with two 

counts of possession with intent to distribute 5 grams or more of cocaine base (Count I 

and Count III) and one count of possession with intent to distribute less than 5 grams of 

cocaine base (Count II). Following the indictment, Delbridge entered into a written plea 

agreement with the Government. He pleaded guilty to Count III and waived his rights to 

take a direct appeal, except in a few limited circumstances, or file a collateral proceeding 

attacking his sentence. In return, the Government moved to dismiss Counts I and II.

The District Court conducted a thorough plea colloquy, during which it explained 

the maximum sentence that Delbridge could receive under the applicable statute and the 

Guidelines range that likely applied based on a preliminary presentence report.1

The District Court then reviewed the terms of the plea agreement with Delbridge 

The 

District Court also explained that it was not bound by the advisory Guidelines range in 

determining Delbridge’s sentence. Delbridge affirmed that he understood, and confirmed 

under oath that no one had promised him a specific sentence, nor had anyone predicted 

what his actual sentence would be.

 1 At the change of plea hearing, the prosecutor and Delbridge’s counsel agreed that 

the applicable advisory Guidelines range was 188–235 months, based on Delbridge’s 

offense level of 31 and criminal history category of VI. Delbridge’s offense level was 

based, in part, on the determination that he was a career offender. 
3

and addressed the fact that Delbridge was giving up his right to collaterally attack the 

judgment of sentence:

[Q:] You are also giving up your right, any right you may have to file a 

motion to vacate sentence under Title 28, United States Code, Section 2255, 

for habeas corpus release [sic], and you’re also giving up other valuable 

rights to obtain collateral review of your sentence. Do you understand, sir?

[A:] Yes, sir. 

The District Court sentenced Delbridge as a career offender under United States 

Sentencing Guideline (USSG) § 4B1.1. The PSR showed that Delbridge had twice been 

convicted of distribution of a controlled substance, once in 1992 and once in 1994, and 

Delbridge had stipulated to being a career offender in his plea agreement. The District 

Court sentenced Delbridge to a term of 188 months’ incarceration and five years of 

supervised release, a sentence at the bottom of the advisory Guidelines range.

Despite having waived his right to appellate review, Delbridge filed a direct appeal 

on February 26, 2008. The Government filed a motion to enforce the appellate waiver, 

and we granted that motion. Undeterred by either our decision dismissing his appeal or 

by his express waiver of his right to collaterally attack the sentence, Delbridge filed a 

motion to vacate his judgment of sentence under 28 U.S.C. § 2255 on November 29, 

2010. Delbridge raised four claims in his motion:

(1) He was denied effective assistance of counsel because of his counsel’s 

erroneous advice concerning his offense level and his counsel’s failure 

to investigate; 

(2) He was denied effective assistance of counsel because his attorney 
4

failed to consult with him concerning a suppression hearing, and failed 

to follow through with that hearing;

(3) He was denied effective assistance of counsel because his attorney 

failed to investigate whether his prior convictions actually qualified him 

for sentencing as a career offender; and

(4) He was denied effective assistance of counsel at sentencing because his 

attorney did not litigate his career offender status.

The District Court summarily denied the motion, explaining that Delbridge 

“knowingly, voluntarily, and with full understanding of the consequences waived his right 

to file any collateral challenge to his conviction or judgment of sentence, and he fails to 

even allege, [much] less point to facts or circumstances in support, that enforcement of 

the waiver in his case would work a miscarriage of justice.”

On July 19, 2011, we granted a certificate of appealability on three issues: (1) 

whether the District Court erred in enforcing the waiver provision sua sponte; (2) whether 

the District Court erred in enforcing the waiver provision without providing Delbridge 

with notice and opportunity to respond; and (3) whether the District Court erred in 

concluding that the waiver provision barred all of Delbridge’s claims.

II

The District Court had jurisdiction to hear Delbridge’s claims under 28 U.S.C. 

§ 2255. We have jurisdiction to decide this appeal pursuant to 28 U.S.C. §§ 1291 and 

2253. Because the District Court decided Delbridge’s motion as a matter of law and 

without a hearing, we review its decision de novo. See United States v. Eakman, 378 
5

F.3d 294, 297 (3d Cir. 2004).

III

The District Court dismissed Delbridge’s motion to vacate sua sponte, finding that 

he had waived his right to collaterally attack the judgment of sentence. A district court 

has the authority to dismiss a motion to vacate without ordering a response from the 

Government or holding an evidentiary hearing when it is clear from both the motion and 

the record that the movant is not entitled to relief. See 28 U.S.C. § 2255(b); Rule 4(b) of 

the Rules Governing § 2255 Proceedings. Courts may raise and consider at least some 

affirmative defenses to the prisoner’s claims without waiting for the Government to raise 

those defenses itself. See, e.g., United States v. Bendolph, 409 F.3d 155, 165 & n.15 (3d 

Cir. 2005) (statute of limitations). Here, both Delbridge and the Government assume that 

the District Court had the power to raise the issue of Delbridge’s collateral proceedings 

waiver without the Government first having asserted the waiver as an affirmative defense. 

As a matter of prudence, the District Court might have requested briefing from 

Delbridge on the waiver issue. Because Delbridge’s waiver of his right to collateral 

proceedings is an affirmative defense that can be raised—or waived—by the Government, 

Delbridge was not required to include arguments in his motion to vacate regarding the 

applicability of the waiver.2

 2 In United States v. Goodson, we explained that “a defendant is not obliged in his 

opening brief to acknowledge the existence of an appellate waiver and/or to explain why 

the waiver does not preclude appellate review of the substantive issue raised. Rather, it is 

Based on only the record and the motion to vacate, it was 
6

theoretically possible that Delbridge had valid arguments regarding the waiver that could 

not be discerned from the record. See United States v. Mabry, 536 F.3d 231, 238 & n.7

(3d Cir. 2008) (suggesting that a defendant’s claim that he was actually misled may 

sometimes involve facts outside the record and require an evidentiary hearing); Bendolph, 

409 F.3d at 165 n.15 (explaining that movants should be given an opportunity to respond 

when the court raises a statute of limitations defense because some relevant facts might 

not be apparent from the record and the petition alone).

We need not dwell on this procedural issue, however, as we have determined—

based both on a review of the record in the District Court and on the arguments that 

Delbridge now asserts in his appellate briefing—that the waiver does bar Delbridge’s 

claims in this case. In assessing the validity of a waiver, courts must consider whether the 

waiver was entered into knowingly and voluntarily, and whether its enforcement would 

work a miscarriage of justice. Mabry, 536 F.3d at 237. Although Delbridge argues in his 

appellate briefing that he did not enter into the plea agreement knowingly and voluntarily, 

and that enforcement would work a miscarriage of justice, none of his specific claims 

require additional factfinding, and the record demonstrates that his claims lack merit.

 

only after the government has invoked an appellate waiver as a bar to our review that a 

defendant must raise a challenge to the waiver’s enforceability.” 544 F.3d 529, 536 (3d 

Cir. 2008). Although Goodson involved a direct appeal, not a § 2255 motion, the same 

reasoning applies here. Prisoners are not required to respond to all potential affirmative 

defenses that the Government may raise in its responsive briefing. See Bendolph, 409 

F.3d at 165 n.15 (3d Cir. 2005); Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002); 

Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000).
7

A

Delbridge contends that his plea colloquy was facially insufficient because the 

District Court’s description of the waiver was not sufficiently detailed. He compares the

explanation of his waiver with the explanation provided in the plea colloquy in United 

States v. Mabry. There, the prosecutor and the defense attorney described to Mabry, on 

the record, the nature of a collateral proceeding. 536 F.3d at 234. Mabry was told by his 

attorney that the right to collaterally attack a sentence is “a right after direct appeal for 

you, for instance, to raise issues that may have to do with my ineffectiveness or other 

collateral issues that could not have been raised on appeal.” Id. Delbridge argues that the 

District Court should have defined “collateral proceedings” and explained specifically 

that Delbridge would be waiving his right to challenge the effectiveness of his counsel.

The transcript of the plea colloquy shows that Delbridge waived his right to 

collaterally attack his sentence knowingly and voluntarily. Although the District Court 

may not have described “collateral review” in the same depth as the defense counsel in 

Mabry, it was not required to do so. Delbridge’s plea colloquy was conducted in 

accordance with Rule 11(b)(1) of the Federal Rules of Criminal Procedure. He was 

advised of the rights that he was waiving; the District Court stated that he was waiving 

his right to file a motion to vacate his sentence “and other valuable rights to obtain 

collateral review of your sentence,” and Delbridge confirmed under oath that he 

understood what the Court was telling him. The District Court was not required to define 
8

further or characterize “collateral proceedings,” nor was it required to list the types of 

claims that Delbridge would no longer be permitted to bring as a result of that waiver. 

See, e.g., Mabry, 536 F.3d at 239 (holding that the sentencing court was not required to 

specifically define “miscarriage of justice” or “advise a defendant of its practical 

applications”).

B

Delbridge also argues that he was actually misled about the consequences of his 

waiver, and that he is entitled to an evidentiary hearing to establish that claim. Delbridge

contends that “he was told by pre-plea counsel that he would be sentenced at an offense 

level 26 if he pled guilty,” a claim that “goes to what Delbridge actually understood, 

based on what he purports his pre-plea counsel told him during their private, attorneyclient communications, communications not a part of the record before the District 

Court.”

The plea colloquy transcript also belies this argument. Even if statements made by 

Delbridge’s counsel led Delbridge to believe, at some point, that he was going to be 

sentenced at an offense level of 26, multiple statements made to him during the plea 

colloquy should have dispelled such a belief. At the plea colloquy, Delbridge was 

advised of the maximum sentence that he could receive, he was informed of the 

Guidelines range applicable to his case, and he was cautioned that the District Court was 

not bound by the Guidelines in determining his sentence. Delbridge acknowledged that 
9

he understood, and confirmed that no promises had been made to him about his actual 

sentence. These explanations render any allegedly inaccurate comment made by 

Delbridge’s counsel irrelevant. See United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 

2007) (“[D]efense counsel’s conjectures to his client about sentencing are irrelevant 

where the written plea agreement and in-court guilty plea colloquy clearly establish the 

defendant’s maximum potential exposure and the sentencing court’s discretion.”); United 

States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged misrepresentations 

that Mustafa’s former counsel may have made regarding sentencing calculations were 

dispelled when Mustafa was informed in open court that there were no guarantees as to 

sentence, and that the court could sentence him to the maximum.”).

C

Finally, Delbridge argues that we should decline to enforce his collateral 

proceedings waiver because barring his claims would work a miscarriage of justice. In 

considering whether enforcing a waiver would result in a miscarriage of justice, we take 

into account “the clarity of the error, its gravity, its character (e.g., whether it concerns a 

fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the 

defendant, the impact of correcting the error on the government, and the extent to which 

the defendant acquiesced in the result.” Mabry, 536 F.3d at 242–43 (quoting United 

States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)). We apply the miscarriage of justice 

exception “sparingly and without undue generosity.” United States v. Wilson, 429 F.3d 
10

455, 458 (3d Cir. 2005) (quoting Teeter, 257 F.3d at 26). The miscarriage of justice 

exception does not apply here because the record establishes that none of Delbridge’s

substantive claims have merit.

1

Delbridge asserts two claims related to his status as a career offender: (1) counsel 

should have investigated whether his prior convictions actually qualified him for 

sentencing as a career offender; and (2) counsel should have challenged this status at his 

sentencing hearing. Delbridge argues that he did not have counsel when he was 

convicted of distribution of a controlled substance in 1993, and so that conviction should 

not have been used in sentencing him as a career offender. He argues that if his counsel 

had adequately investigated his criminal history, he would have discovered that his 1993

conviction was invalid, and he could have objected to its inclusion in the PSR.

To establish that he was denied ineffective assistance, Delbridge must show that 

his attorney’s performance “fell below an objective standard of reasonableness,” and that 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 

688, 694 (1984). Although a conviction obtained in violation of the right to appointed 

counsel should not count as a predicate conviction,

3

 3 See Burgett v. Texas, 389 U.S. 109, 115 (1967) (“To permit a conviction obtained 

in violation of Gideon v. Wainwright to be used against a person either to support guilt or 

enhance punishment for another offense is to erode the principle of that case.” (citation 

Delbridge cannot establish that his 
11

attorney’s failure to investigate or litigate that issue prejudiced him in any way because he

cannot show that he was denied representation in either of his prior distribution 

convictions. Both of the sentencing orders from Delbridge’s Alabama convictions for 

unlawful distribution note that Delbridge appeared “with his attorney.” Although it is 

unclear which of these convictions Delbridge contests—since neither of the orders is

from 1993—it is sufficiently clear that he had counsel in both of the cases that were noted 

in the PSR.4

2

Thus, enforcing Delbridge’s waiver with respect to these claims does not 

result in a miscarriage of justice.

Delbridge also claims that he was denied effective assistance because his pre-plea 

counsel told him that he would be sentenced at an offense level of 26 if he pleaded guilty. 

However, “we have long held that an erroneous sentencing prediction by counsel is not 

 

omitted)); see also Curtis v. United States, 511 U.S. 485, 496 (1994) (noting the holding 

in Burgett but declining to extend it to, inter alia, denial of effective assistance of 

counsel, explaining that “failure to appoint counsel for an indigent defendant [is] a unique 

constitutional defect”).

4 Delbridge does not challenge the accuracy of any of the Alabama sentencing 

orders provided in the Government’s appendix. He argues instead: “This Court directed 

the parties to address Delbridge’s 1993 conviction. From the government’s Supplemental 

Appendix, it would appear that Delbridge had an attorney for all three of his Alabama 

convictions. Of those three convictions, none actually occurred in 1993.” Since the only 

mention of a 1993 conviction was in Delbridge’s motion to vacate—not in the PSR that 

the District Court relied on—it is the 1992 and 1994 distribution convictions that are 

relevant here. (The third conviction referenced by Delbridge, from 1996, was a 

conviction for possession, not distribution, and so was not a part of the Court’s career 

offender determination.)
12

ineffective assistance of counsel where, as here, an adequate plea hearing was 

conducted.” See Shedrick, 493 F.3d at 299; United States v. Jones, 336 F.3d 245, 254 (3d 

Cir. 2003). Because the District Court explained at the plea colloquy both Delbridge’s 

maximum potential sentence and the Court’s discretion in sentencing, and Delbridge 

confirmed under oath that there were no other agreements or promises regarding his 

potential sentence, enforcing Delbridge’s plea waiver with respect to this claim could not 

result in a miscarriage of justice. See Shedrick, 493 F.3d at 299.

3

Delbridge asserted in his motion to vacate that he was denied effective assistance 

of counsel because his pre-trial counsel failed to consult with him on a suppression 

hearing. As the Government points out, however, Delbridge does not even attempt to 

explain in his appellate briefing why barring this claim would result in a miscarriage of 

justice. Because Delbridge entered into the plea agreement knowingly and voluntarily, 

and because he has not suggested that enforcing this claim would result in a miscarriage 

of justice, this claim is also barred.

III

For the foregoing reasons, we will affirm the District Court’s order denying 

Delbridge’s § 2255 motion to vacate.