United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1573

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Katrina Elizabeth Griffin, *

*

Appellant. *

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Submitted: December 13, 2011

Filed: February 9, 2012

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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Katrina Griffin appeals her conviction for conspiracy to distribute and possess

with the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846,

and conspiracy to launder money, in violation of 18 U.S.C. § 1956. Because Griffin’s

written plea agreement contains a valid appeal waiver that forecloses this appeal, we

dismiss the appeal.
I.

On September 27, 2004, Griffin and eleven co-defendants were indicted in the

District of Arizona for conspiracy to distribute and possess with the intent to

distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and conspiracy to

launder money, in violation of 18 U.S.C. § 1956. Ultimately, the government

successfully sought dismissal of the Arizona indictment in favor of charging the

defendants in the Eastern District of Missouri for the same offenses. 

Griffin was indicted in the Eastern District of Missouri on October 7, 2004. 

Several of her co-defendants filed pretrial motions, evidentiary hearings on which

were held between December 15, 2004, and February 9, 2005. On January 29, 2007,

a magistrate judge issued reports and recommendations regarding the pretrial

motions. On July 18, 2007, the district court ordered the case dismissed without

prejudice for violations of the Speedy Trial Act. Griffin appealed, arguing that the

district court erred by not dismissing the case with prejudice. We dismissed her

appeal for lack of jurisdiction because the district court’s order dismissing the case

without prejudice did not constitute a “final decision” within the meaning of 28

U.S.C. § 1291. See United States v. Bridges, 270 F. App’x 464 (8th Cir. 2008) (per

curiam) (unpublished) (dismissing Bridges and Griffin’s appeal).

On November 8, 2007, Griffin was reindicted in the Eastern District of

Missouri for the same offenses as in the previously dismissed cases. Griffin filed a

motion to dismiss, alleging a Speedy Trial Act violation. The district court denied 1

the motion with respect to both the 2004 and 2007 Eastern District of Missouri

indictments.

The Honorable Jean C. Hamilton, United States DistrictJudge for the Eastern 1

District of Missouri.

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Griffin reached a plea agreement with the government on July 9, 2008, and her

change of plea hearing occurred on the same day. The plea agreement included a

general waiver of appeal, which provided that the parties “waive all rights to appeal

all non-jurisdictional issues including, but not limited to, any issues relating to

pretrial motions, hearings and discovery and any issues relating to the negotiation,

taking or acceptance of the guilty plea or the factual basis for the plea.” Plea

Agreement at 3. The general appeal waiver further provided that the parties would

waive any appellate rights concerning the sentence, as long as the district court

applied the government’s sentencing recommendations contained in the plea

agreement and sentenced Griffin within the applicable United States Sentencing

Guidelines (Guidelines) range. Plea Agreement at 3-4. 

The plea agreement also contained a specific provision regarding the speedy

trial issue:

The defendant further agrees that this is not a conditional plea and that

by pleading guilty she is waiving her right to a speedy trial and is

withdrawing her previously filed motion to dismiss the instant

indictment as violations of the Speedy Trial Act and Sixth Amendment. 

The defendant is thereby waiving any right to appeal any issues related

to violation of the Speedy Trial Act in the instant cause and/or cause

number 4:04CR572JCH(FRB).

Plea Agreement at 2.

Griffin acknowledged at her change of plea hearing that she understood the

waiver of her appellate rights. The district court accepted her guilty plea and

sentenced Griffin to 151 months’ imprisonment, five years ofsupervised release, and

a $200 special assessment. Griffin did not appeal, but she later filed a motion to

vacate, set aside or correct sentence under 28 U.S.C. § 2255, alleging that she had

received ineffective assistance of counsel. Her claims included counsel’s failure to

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(1) file a notice of appeal, (2) object to false information in the plea agreement, and

(3) advise Griffin of the nature and circumstances of the plea agreement. The district

court agreed that counsel’s failure to file a notice of appeal constituted ineffective

assistance, and thus it granted Griffin’s motion on that basis, while denying without

prejudice the other ineffective assistance claims. The district court ordered that

Griffin be resentenced, apparently to enable her to pursue the instant appeal. At

resentencing, Griffin’s term of imprisonment was reduced to 120 months. Griffin

then filed a timely appeal based on alleged violations of the Speedy Trial Act and her

constitutional right to a speedy trial under the Sixth Amendment to the United States

Constitution. The government argues for dismissal based on the terms of the appeal

waiver.

II.

“As a general rule, a defendant is allowed to waive appellate rights.” United

States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc). “When reviewing a

purported waiver, we must confirm that the appealfalls within the scope of the waiver

and that both the waiver and plea agreement were entered into knowingly and

voluntarily.” Id. at 889-90. “Even when these conditions are met, however, we will

not enforce a waiver where to do so would result in a miscarriage of justice.” Id. at

890. We previously have held that a guilty plea waives appeal of “the alleged denial

of a speedy trial.” United States v. Lee, 500 F.2d 586, 587 (8th Cir. 1974); see also

Taylor v. United States, 204 F.3d 828, 829 (8th Cir. 2000) (per curiam) (holding that

defendant waived right to raise any argument based on violation of the Speedy Trial

Act when pleading guilty) (citing United States v. Cox, 985 F.2d 427, 433 (8th Cir.

1993)); Speed v. United States, 518 F.2d 75, 77 (8th Cir. 1975) (noting that “it is well

settled that a plea of guilty waives any claim to denial of a speedy trial”) (citation

omitted).

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We conclude that Griffin’s plea agreement was knowingly and voluntarily

entered into. Prior to concluding that Griffin knowingly and voluntarily entered into

the plea agreement, the district court thoroughly questioned Griffin about her decision

to enter into the agreement and waive her appellate rights. See Andis, 333 F.3d at

890-91 (noting that “[o]ne important way a district court can help ensure that a plea

agreement and corresponding waiver are entered into knowingly and voluntarily is

to properly question a defendant about his or her decision to enter that agreement and

waive the right to appeal.”).

We also conclude that Griffin’s appeal, which is based on the district court’s

ruling to dismiss the first Missouri indictment without prejudice upon concluding that

Speedy Trial Act violations had occurred, falls within the scope of both her general

and specific appeal waivers. No exception to the waivers applies, asthe district court

applied the government’s sentencing recommendations and Griffin received a

sentence within the applicable Guidelines range.

We further conclude that enforcing the appeal waiver would not result in a

miscarriage of justice. “[T]his exception is a narrow one . . . .” Andis, 333 F.3d at

891. Although we have not provided an exhaustive list of the circumstances that

might constitute a miscarriage of justice, we have recognized that a waiver of

appellate rights does not prohibit the appeal of an illegal sentence, a sentence in

violation of the terms of an agreement, and a claim asserting ineffective assistance of

counsel. Id. Griffin was sentenced to less than the statutory maximum for violation

of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 1956, and her sentence did not

violate the terms of the plea agreement. To the extent that Griffin raises claims based

on ineffective assistance of counsel, we see no reason to depart from “our usual rule

requiring such claims to be raised in a subsequently filed 28 U.S.C. § 2255

proceeding where the record can be properly developed.” United States v. Jennings,

662 F.3d 988, 991-92 (8th Cir. 2011) (citations omitted). Because the district

court—when granting Griffin’s § 2255 ineffective assistance claim concerning

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counsel’s failure to file a notice of appeal—dismissed without prejudice Griffin’s

remaining § 2255 ineffective assistance claims, Griffin has no pending § 2255 claim. 

Under the circumstances, requiring Griffin to raise her ineffective assistance of

counsel claims by way of another § 2255 proceeding would not result in a miscarriage

of justice. See Flores v. United States, No. 97-8080, 1997 WL 525596 (8th Cir.

1997) (per curiam) (unpublished) (holding that “a habeas petition which is filed after

a prior petition has been dismissed without prejudice does not quality as ‘second or

successive’ habeas application within the meaning of § 2255 and 2244(b)”) (citing

McWilliams v. Colorado, 121 F.3d 573 (10th Cir. 1997)); see also Blade v. United

States, 266 F. App’x 499 (8th Cir. 2008) (per curiam) (unpublished) (noting that

claim raised in prior habeas petition dismissed without prejudice was not a

“successive motion” barred by Antiterrorism and Effective Death Penalty Act of

1996).

III.

The appeal is dismissed.

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