16-4107(L)

Cook v. United States

United States Court of Appeals

for the Second Circuit

August Term 2020

Submitted: February 3, 2021 

Decided: October 16, 2023 

Nos. 16-4107(L), 19-3773(Con), 19-3790(Con),

19-3807(Con), 19-3813(Con), 19-3899(Con)

DEREK COOK, CHAD EDWARDS, BRIAN LATULIPE,

ANSON EDWARDS, BRYAN HERNE, KAIENTANORON L. SWAMP, 

Petitioners-Appellants, 

v.

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of New York

Nos. 08-cr-355, 14-cv-1282, David N. Hurd, Judge.

Before: JACOBS, SULLIVAN, and BIANCO, Circuit Judges.

Petitioners-Appellants appeal from orders of the district court (Hurd, J.) 

denying their petitions for habeas relief pursuant to 28 U.S.C. § 2255, following 

their 2012 convictions for conspiracy to commit Hobbs Act robbery, in violation of 

18 U.S.C. § 1951, and use of a firearm in furtherance of a crime of violence – 
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specifically, the Hobbs Act robbery conspiracy – that caused the death of another 

person, in violation of 18 U.S.C. § 924(c) and (j). On appeal, Petitioners contend 

that the district court erroneously enforced the collateral-attack waivers in their 

plea agreements, which they argue are unenforceable in light of Johnson v. United 

States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). Because 

subsequent changes in the law do not allow Petitioners to back out of their valid

agreements with the government, the waivers are enforceable. Accordingly, we 

DISMISS the appeal.

APPEAL DISMISSED.

James P. Egan, Assistant Federal 

Public Defender, Syracuse, NY, for 

Petitioners-Appellants Derek Cook, Chad 

Edwards, Brian Latulipe, Anson Edwards,

Bryan Herne, Kaientanoron L. Swamp.

Michael F. Perry, Carina H. Schoenberger, 

Assistant United States Attorneys, for Carla 

B. Freedman, United States Attorney for the 

Northern District of New York, Syracuse, 

NY, for Respondent-Appellee United States of 

America.

RICHARD J. SULLIVAN, Circuit Judge:

Petitioners-Appellants – Derek Cook, Chad Edwards, Brian Latulipe, Anson 

Edwards, Bryan Herne, and Kaientanoron L. Swamp – appeal from orders of the 

district court (Hurd, J.) denying their petitions for habeas relief pursuant to 28 

U.S.C. § 2255, following their 2012 convictions for conspiracy to commit Hobbs 

Act robbery, in violation of 18 U.S.C. § 1951, and use of a firearm in furtherance of 

a crime of violence – specifically, the Hobbs Act robbery conspiracy – that caused 
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the death of another person, in violation of 18 U.S.C. § 924(c) and (j). On appeal, 

Petitioners contend that the district court erroneously enforced the 

collateral-attack waivers in their plea agreements, which they argue are 

unenforceable in light of Johnson v. United States, 576 U.S. 591 (2015), and United 

States v. Davis, 139 S. Ct. 2319 (2019). Because subsequent changes in the law do 

not allow Petitioners to back out of their valid agreements with the government, 

the waivers are enforceable. Accordingly, we DISMISS the appeal.1

I. BACKGROUND

Under virtually identical plea agreements, Petitioners pleaded guilty to two

criminal charges: conspiracy to commit Hobbs Act robbery, in violation of 18 

U.S.C. § 1951(a), and using a firearm in furtherance of a crime of violence that 

caused the death of another person, in violation of 18 U.S.C. § 924(c) and (j). In 

their respective agreements, and in exchange for the government’s promise not to 

bring any further criminal charges related to the conduct underlying the 

conspiracy, Petitioners waived several rights, including the right to appeal and –

1 The decision in this case was delayed by the panel’s need to await its turn in a queue of cases 

pending in this Circuit resolving whether a waiver of the right to appeal or collaterally attack a 

section 924(c) conviction is enforceable following the Supreme Court’s rulings in Johnson v. United 

States, 576 U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). Since the cases ahead 

of us in the queue ultimately did not reach the issue, we address it here as a matter of first 

impression in this Circuit.
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as especially relevant here – the right to collaterally attack their convictions and 

sentences under 28 U.S.C. § 2255, so long as the sentence imposed did not exceed 

an agreed-upon term of imprisonment specified in the plea agreement. The 

district court held separate change-of-plea hearings for each Petitioner and later 

sentenced each below the agreed-upon sentencing range. Consistent with the plea 

agreements, none of the Petitioners appealed.

Three years later, after the Supreme Court held in Johnson that the residual 

clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),

was unconstitutionally vague, 576 U.S. at 597, Petitioners filed these section 2255 

motions. Petitioners argued that, if the residual clause of the ACCA is 

unconstitutional, then the similarly worded residual clause under 

section 924(c)(3)(B) must be as well.2 Based on that premise, Petitioners 

maintained that their convictions for conspiracy to commit Hobbs Act robbery no 

longer qualified as a “crime of violence,” removing the sole predicate for their 

section 924(c) convictions. The district court denied Cook’s motion first, 

2 Section 924(c)(3)(B) provides: “For purposes of this subsection the term ‘crime of violence’

means an offense that is a felony and . . . that by its nature, involves a substantial risk that physical 

force against the person or property of another may be used in the course of committing the 

offense.” 18 U.S.C. § 924(c)(3)(B). By comparison, section 924(e)(2)(B)(ii) provides, in relevant 

part: “the term ‘violent felony’ means any crime punishable by imprisonment for a term 

exceeding one year” that “involves conduct that presents a serious potential risk of physical 

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
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concluding that it was barred by the collateral-attack waiver in his plea agreement

and, alternatively, that conspiracy to commit Hobbs Act robbery was a “crime of 

violence” under then-existing Circuit precedent. While the remaining petitions 

for relief were pending, the Supreme Court issued Davis, holding that 

section 924(c)’s residual clause was unconstitutional, 139 S. Ct. at 2336, and 

implicitly requiring the government to prove that a defendant’s conduct satisfied 

the statute’s elements clause. In the wake of Davis, we held that conspiracy to 

commit Hobbs Act robbery no longer qualified as a “crime of violence.” See United 

States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), abrogated on other grounds by 

Lora v. United States, 599 U.S. 453 (2023). The district court subsequently denied 

the remaining petitions, relying exclusively on the fact that Petitioners had waived 

their right to collateral review. After Petitioners appealed, we issued certificates

of appealability on the issue of “whether [Petitioners’] waiver[s] of the right to 

challenge [their] 18 U.S.C. § 924(c) conviction[s] should be enforced, and, if not, 

whether [their] § 924(c) conviction[s] should be vacated.” No. 16-4107(L), Doc. No. 

46; No. 19-3773(Con), Doc. No. 21; No. 19-3790(Con), Doc. No. 25; No. 

19-3807(Con), Doc. No. 22; No. 19-3813(Con), Doc. No. 22; No. 19-3899(Con), Doc. 

No. 21.
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II. STANDARD OF REVIEW

We review de novo whether a plea agreement’s collateral-attack waiver 

precludes a motion to vacate a conviction. See United States v. Green, 897 F.3d 443, 

447 (2d Cir. 2018).

III. DISCUSSION

A waiver of the right to collaterally attack a conviction is presumptively 

enforceable. See United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017). Such waivers 

must be enforced because, if they are not, “the covenant . . . becomes meaningless 

and would cease to have value as a bargaining chip in the hands of defendants.” 

United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995). The exceptions to the 

presumption of enforceability “occupy a very circumscribed area of our 

jurisprudence.” United States v. Borden, 16 F.4th 351, 354–55 (2d Cir. 2021) (internal 

quotation marks omitted). We have recognized only five circumstances where we 

will not enforce a waiver: “(1) where the waiver was not made knowingly, 

voluntarily, and competently; (2) where the sentence was based on 

constitutionally impermissible factors, such as ethnic, racial[,] or other prohibited 

biases; (3) where the government breached the agreement containing the waiver; 

. . . (4) where the district court failed to enunciate any rationale for the defendant’s 
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sentence,” Burden, 860 F.3d at 51 (internal quotation marks omitted); and (5) where 

the waiver “was unsupported by consideration,” United States v. Lutchman, 910 

F.3d 33, 38 (2d Cir. 2018). Here, Petitioners argue that we should decline to enforce 

the waivers because (1) Petitioners did not knowingly and voluntarily waive their 

right to collaterally attack their convictions, and (2) holding Petitioners to their 

waivers would be unconscionable when the predicate crime on which their section 

924(c) convictions were based – conspiracy to commit Hobbs Act robbery – is no 

longer a “crime of violence” in light of Davis and Barrett. We address each of these

arguments in turn.

A. Petitioners’ Pleas Were Knowing and Voluntary.

Petitioners Chad Edwards, Brian Latulipe, and Anson Edwards now 

contend, for the first time, that the district court’s remarks at sentencing misled 

them into believing that they were not relinquishing their right to challenge their 

convictions, rendering their pleas involuntary and unknowing in violation of 

Rule 11 of the Federal Rules of Criminal Procedure.3 We disagree.

3 Contrary to the government’s contention, Petitioners’ challenge to the voluntariness of their 

waivers falls squarely within the scope of the certificates of appealability issued in these 

consolidated appeals. We granted certificates of appealability to consider “whether [Petitioners’] 

waiver[s] of the right to challenge [their] 18 U.S.C. § 924(c) conviction[s] should be enforced.”

No. 16-4107(L), Doc. No. 46; No. 19-3773 (Con), Doc. No. 21; No. 19-3790 (Con), Doc. No. 25; 

No. 19-3807(Con), Doc. No. 22; No. 19-3813 (Con), Doc. No. 22; No. 19-3899 (Con), Doc. No. 21. 
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For starters, Petitioners’ challenge to the voluntariness of their plea 

agreements is untimely. Ordinarily, a habeas petition must be filed within one 

year of the date on which the petitioner’s conviction became final. 28 U.S.C. 

§ 2255(f)(1). Petitioners could have raised a challenge to the voluntariness of their 

pleas at the time of their plea proceedings, on direct appeal, in a timely filed habeas 

petition, or in an amended habeas petition that relates back to a timely petition. 

Petitioners did none of those things. Because Petitioners offer no explanation for 

why they waited until now – on appeal from the district court’s denial of their 

habeas petitions and years after the one-year deadline – to challenge the 

voluntariness of the collateral-attack waivers that they executed in 2012, their 

challenge is untimely. See, e.g., McCloud v. United States, 987 F.3d 261, 267 (2d Cir. 

2021) (affirming district court’s dismissal of untimely section 2255 petition); Nunez 

v. United States, 954 F.3d 465, 467 (2d Cir. 2020) (same); Moshier v. United States, 402 

F.3d 116, 118 (2d Cir. 2005) (denying certificate of appealability to petitioner who 

made untimely section 2255 petition). And even if we construed Petitioners’ new 

voluntariness challenge as an amended habeas petition, it would still be untimely 

Because a waiver is unenforceable when it is made involuntarily or without full knowledge of the 

rights being waived, see Burden, 860 F.3d at 51, the text of our orders granting the certificates of 

appealability encompasses Petitioners’ arguments in this regard.
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because it is based on facts – specifically, the district court’s sentencing colloquies 

– that do not relate back to Petitioners’ timely habeas petition. See Mayle v. Felix, 

545 U.S. 644, 650 (2005) (“An amended habeas petition, we hold, does not relate 

back (and thereby escape AEDPA’s one-year time limit) when it asserts a new 

ground for relief supported by facts that differ in both time and type from those 

the original pleading set forth.”).

But even if we were to assume the timeliness of Petitioners’ Rule 11 

argument, it would still fail. At their respective plea hearings, each of the three 

Petitioners stated that he had read and signed the agreement, the terms of which 

included an express waiver of “any and all rights . . . to appeal or collaterally attack 

his conviction and any sentence,” so long as the sentence imposed fell within the 

sentencing range stipulated by the parties. C. Edwards App’x at 26; see also

Latulipe App’x at 32; A. Edwards App’x at 27. Petitioners also confirmed that they 

had reviewed the agreement with counsel and that all their questions about the 

agreement had been answered.

To be sure, the district court, during its colloquy with Chad Edwards,

described the waiver as one that relinquished the right to collaterally attack any 

sentence imposed below a certain threshold, without mentioning that the waiver 
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also prohibited him from challenging his underlying conviction. But the court’s 

omission of one aspect of the waiver did not inject ambiguity into the plea 

agreement’s otherwise clear terms. In fact, we previously rejected a similar 

argument where the court failed to mention the waiver provision altogether. In 

Sanford v. United States, we held that a plea was knowing and voluntary where the 

agreement included an explicit waiver of the right to bring postconviction 

challenges, even though the district court “did not specifically mention that [the 

defendant] had waived the right to ‘otherwise challenge’ the conviction or 

sentence (i.e., collaterally attack them).” 841 F.3d 578, 581 (2d Cir. 2016). Like the 

plea agreement in Sanford, the plea agreements here include a provision 

“waiv[ing] any and all rights, including those conferred by . . . 28 U.S.C. § 2255 . . . 

[to] collaterally attack [the] conviction and any sentence of imprisonment,” so long 

as the sentence imposed fell below a stipulated length. C. Edwards App’x at 26; 

see also Latulipe App’x at 32; A. Edwards App’x at 27. Considering that each 

Petitioner confirmed that he had “talked with his lawyer about the plea agreement 

and signed it, and there being no evidence indicating that [Petitioners were]

coerced or misunderstood any of the relevant facts,” Sanford, 841 F.3d at 581, we 

see no reason to reach a different result here.
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Latulipe and Anson Edwards make a slightly different argument, asserting 

that the district court’s characterization of Petitioners’ plea agreements during 

their colloquies – as waiving the right to appeal or collaterally attack only their

sentences – contradicted Petitioners’ plea agreements. But even assuming the 

district court’s shorthand reference to the waiver provisions in the plea 

agreements was error, it in no way renders Petitioners’ waivers involuntary or 

unknowingly made. Under the plain error standard, which we apply because

Petitioners did not raise the error in the district court, Petitioners can only benefit 

from the district court’s allegedly erroneous description of the waivers if they can 

show that there was “a reasonable probability that, but for the error, [they] would 

not have entered the plea.” United States v. Lloyd, 901 F.3d 111, 119 (2d Cir. 2018) 

(internal quotation marks omitted). By the time of their colloquies, Petitioners had

already reviewed the terms of their plea agreements, which plainly stated that 

Petitioners were waiving their right to bring any postconviction challenges to 

either their convictions or sentences, had already discussed those terms with 

counsel, and had already signed the agreements. Nothing in the record suggests 

that Petitioners were affirmatively misled by the colloquies, Zhang v. United States, 

506 F.3d 162, 164 (2d Cir. 2007), or that their decisions to plead guilty turned on 
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the district court’s description of the written waiver terms that Petitioners 

themselves had read and reviewed with counsel. As a result, they have failed to 

establish that their pleas were involuntary or unknowingly made.

B. Even in the Face of Evolving Judicial 

Precedent, Petitioners’ Waivers Are Enforceable.

Petitioners next argue that even if their collateral-attack waivers were

knowingly and voluntarily executed, it would be inequitable to enforce them

where a favorable change in law – here, the Supreme Court’s holdings in Johnson 

and Davis – creates new legal theories on which to attack their underlying 

convictions. While we have not yet considered the precise question of whether 

collateral-attack waivers are enforceable in the wake of Johnson and Davis, we have 

made clear that such waivers are generally enforceable in the face of “evolving 

judicial precedent.” United States v. Morgan, 406 F.3d 135, 137 n.3 (2d Cir. 2005). 

As we noted nearly two decades ago, “the possibility of a favorable change in the 

law after a plea is simply one of the risks that accompanies pleas and plea 

agreements.” Id. at 137. This principle follows from the fact that plea agreements, 

like all contracts, allocate risk between the parties – and we are not free to disturb 

the bargain the parties strike.
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Our decision in Sanford – in which we held that a defendant’s waiver of his 

right to collaterally attack his sentence remained enforceable even where his 

sentence was based on a Guidelines provision later held to be unconstitutional – 

reinforces this point about the continuing viability of plea agreements. See 841 

F.3d at 580. While Sanford involved a change in law governing a defendant’s 

sentence, our reasoning in that case applies with equal force to changes in the law 

that impact convictions. The enforceability of a collateral-attack waiver turns on 

whether the petitioner’s plea was knowing and voluntary, not the nature of any

subsequent legal developments. In fact, other Circuits to address this issue since 

Davis have come to the same conclusion. See King v. United States, 41 F.4th 1363, 

1370 (11th Cir. 2022) (rejecting petitioner’s Davis challenge to conviction and 

sentence because, “[b]ut for a few narrow exceptions, a defendant [who] waives 

the right to collaterally attack his sentence is bound by that decision,” and 

“[defendant’s] Davis claim is no exception”); Portis v. United States, 33 F.4th 331, 

335 (6th Cir. 2022) (rejecting petitioner’s Davis challenge to conviction because 

“waivers of the right to bring postconviction challenges remain enforceable after 

changes in law, here the Davis decision”); United States v. Goodall, 21 F.4th 555, 562

(9th Cir. 2021) (rejecting defendant’s appeal of conviction because, “[w]hen a 
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defendant waives his appellate rights, he knows that he is giving up all appeals, 

no matter what unforeseen events may happen”); Oliver v. United States, 951 F.3d 

841, 848 (7th Cir. 2020) (rejecting defendant’s Davis challenge to conviction and 

sentence because “normal constitutional challenges to a statute of conviction fall 

comfortably within the permissible scope of valid waivers like the ones here”).

Petitioners counter that they have a “due process right not to be convicted 

of a non-existent offense.” Cook Br. at 14. But the question is not whether

Petitioners have a right not to be convicted of a non-existent offense. It is whether 

Petitioners have a right to bring a collateral attack when, in exchange for valid 

consideration, they executed binding plea agreements admitting their criminal 

conduct and waiving their ability to challenge the resulting convictions. And on 

that score, our precedent is clear that “ignorance of future rights is unavoidable 

and not a basis for avoiding a plea agreement.” United States v. Haynes, 412 F.3d 

37, 39 (2d Cir. 2005).4

4 This case does not require us to decide whether a collateral-attack waiver would be 

unenforceable in the event of a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 

333, 346 (1974). Unlike the petitioner in Davis, who argued that his conviction for draft evasion 

was based on “an act that the law d[id] not make criminal,” id., the defendants here admitted to 

having engaged in an armed robbery of a drug dealer in which the victim was gunned down. 

That conduct was prohibited by a number of criminal statutes – including 21 U.S.C. § 846 (drug 

conspiracy), 21 U.S.C. § 846 & 18 U.S.C. § 2 (attempted possession with intent to distribute 

marijuana), and 18 U.S.C. § 1951 (substantive Hobbs Act Robbery) – none of which was affected 
15

At bottom, a waiver of the right to bring a postconviction challenge is 

presumptively enforceable, even after the legal landscape shifts. A defendant who 

wishes to maintain his right to collaterally attack his conviction in the event of 

unforeseen legal developments may, of course, attempt to negotiate more 

favorable waiver terms with the government before pleading guilty. But where 

the waiver itself is clear, unambiguous, knowingly and voluntarily entered, and 

supported by consideration – here, the government’s agreement not to pursue 

charges or arguments that could have resulted in a much higher sentence – the 

terms of the plea agreements must be enforced.

III. CONCLUSION

For the foregoing reasons, we conclude that Petitioners’ collateral-attack 

waivers are enforceable, and we therefore DISMISS Petitioners’ appeals.

by the Supreme Court’s intervening precedents and each of which would have supported a 

section 924(c) conviction. Had the parties anticipated the Supreme Court’s intervening caselaw, 

they surely would have structured the plea agreement to reach the same ultimate result. “It is 

not a miscarriage of justice to refuse to put [the defendants] in a better position than they would 

have been in if all relevant actors had foreseen [the Supreme Court’s change in law].” Oliver v. 

United States, 951 F.3d 841, 847 (7th Cir. 2020).