1 United States Court of Appeals,

Fifth Circuit.

No. 96-10659.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ludevina Ayala CERVANTES, Defendant-Appellant.

Jan. 27, 1998.

Appeal from the United States District Court for the Northern

District of Texas.

Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Ludevina Ayala Cervantes appeals the district court's denial

of her petition for habeas corpus under 28 U.S.C. § 2255.

Cervantes pled guilty to distribution of cocaine and entered into

a plea agreement. The agreement included a waiver of the right to

appeal her sentence. Despite the waiver, Cervantes attempted to

appeal her sentence on direct appeal, but we dismissed the appeal

based on the waiver. Cervantes then filed a petition for habeas

relief with the district court. She alleged that the judge had

inc orrectly calculated her sentence. She further alleged that

defense counsel had rendered ineffective assistance by inducing her

to plead guilty based on misrepresentations as to what her sentence

would be. The district court denied habeas relief. It held that

sen tencing issues are not cognizable under section 2255 and that

the record of the sentencing hearing conclusively refuted any claim

of inducement. On this appeal, Cervantes renews her claims of

ineffective assistance of counsel and further contends that her2

waiver of the right to appeal her sentence was invalid. For the

reasons that follow, we affirm.

I

On October 6, 1992, Cervantes was indicted by a Grand Jury and

charged with conspiracy to distribute cocaine and two substantive

counts of distribution of cocaine. At rearraignment on September

7, 1993, Cervantes, represented by counsel, entered a guilty plea

to one count of distribution of cocaine under 21 U.S.C. § 841. The

plea agreement included a waiver of her right to appeal any

sentence ultimately imposed. At the sentencing hearing four months

later, Cervantes received a sentence of 97 months in prison, five

years of supervised release, and a fifty dollar special assessment.

Despite the appeal waiver provision in her plea agreement,

Cervantes filed a motion for leave to appeal IFP, which the

district court granted, appointing Cervantes's previous counsel to

represent her on appe al. On January 11, 1994, Cervantes filed a

notice of appeal to this court. In March, the government responded

with an unopposed motion to dismiss the appeal based on the appeal

waiver. We dismissed the appeal on April 1, 1994.

On May 23, 1995, Cervantes filed a section 2255 petition for

habeas relief. She contended that the court incorrectly calculated

her sentence and that he r counsel had rendered constitutionally

ineffective assistance. Specifically, Cervantes alleged that the

court erred by basing its sentence on the total amount of cocaine

involved in the alleged conspiracy rather than the smaller amount

she sold to an undercover agent. She further alleged that defense3

counsel was ineffective because he induced her to plead guilty with

misrepresentations as to the sentence she would receive, he failed

to challenge the amount of cocaine used to calculate her sentence,

and he failed to prosecute the appeal of her sen tence. The

government filed an answer, asserting that Cervantes's challenge of

her sentence was not cognizable under section 2255 and, in any

event, the ap peal had been waived in the plea agreement. The

government also responded that Cervantes's inducement claim was

refuted by her sworn testimony at the plea hearing.

Cervantes then filed an "amendment to section 2255 motion," in

which she requested that the district court accept two affidavits

in support of her ineffective assistance of counsel claim. One

affidavit, given by her sister Becky Ayala, stated that when she

was at Cervantes's counsel's office, she heard him tell Cervantes

that if she pleaded guilty and signed the plea agreement, Cervantes

would receive only three to five years in prison based on an

agreement with the government. The affidavit also asserted that on

the day Cervantes was sentenced, her counsel told Cervantes he

would file an appeal, but that later, he told her not to call him

again. The other affidavit, given by Cervantes's other sister,

Delphie Whiteman, and her husband, stated that Cervantes's counsel

had assured them Cervantes would receive no more than five years in

prison based on an agreement with the government.

On May 17, 1996, the district court denied Cervantes's section

2255 motion without an evidentiary hearing "for the reasons stated

in the Government's an swer." The court held that Cervantes's1 We have recently held that a COA is unnecessary in section

2255 actions filed prior to the effective date of the AEDPA, April

24, 1996. S ee Carter v. Johnson, No. 96-20334, 1997 WL 768622, at

*3,

--- F.3d ----, ---- (5th Cir. Dec. 12, 1997). Thus, Cervantes

was not required to obtain a COA.

4 "amendment" to the motion would not be considered because it was

received after the government's answer was filed, and Cervantes had

not sought leave of court to file it. The court further concluded

that, even if the affidavits were properly admitted, the facts

asserted therein were effectively refuted by the terms of the plea

agreement and by Cervantes's own st atements under oath at the

sentencing hearing.

Cervantes filed the present appeal. Although she had not

requested a certificate of appealability ("COA") from the district

court, we treated her notice of appeal as an application for such

and granted Cervantes a COA on whether the appeal waiver provision

in her plea agreement was valid—which now appears to have been

raised for the first time in this appeal—and whether her guilty

plea was improperly induced. 1 In addition to these issues,

Cervantes renews her claims that the district court e rred in

calculating her sentence and that her counsel was ineffective for

not properly objecting to the amount of drugs used to calculate her

sentence. Also, for the first time on appeal, Cervantes contends

(1) that counsel was ineffective for not having requested a

downward depa rture under the Sentencing Guidelines based on her

family circumstances; (2) that the district court failed to comply

with Rule 11; and (3) that the government breached the plea

agreement by failing to make a specific sentencing recommendation.5 II

As a threshold matter, we consider our standard of review and

the extent to which Cervantes's claims are cognizable under section

2255. Following a conviction and exhaustion or waiver of the right

to direct appeal, we presume a defendant stands fairly and finally

convicted. U

nited States v. Shaid, 937 F.2d 228, 231-32 (5th

Cir.1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978,

117 L.Ed.2d 141 (1992). As a result, review of convictions under

section 2255 ordinarily is limited to questions of constitutional

or jurisdictional magnitude, which may not be raised for the first

time on collateral review without a showing of cause and prejudice.

Id. Other types of error may not be raised under section 2255

unless the defendant demonstrates that the error could not have

been raised o n direct appeal a nd, if condoned, would result in a

complete miscarriage of justice. U nited States v. Pierce, 959 F.2d

1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621,

121 L.Ed.2d 554 (1992).

As the district court properly concluded, Cervantes's claim

that the trial judge erred in calculating her sentence is not

grounds for section 2255 relief. Technical application of the

Sentencing Guidelines does not give rise to constitutional issues.

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992). And

although the appe al waiver prevented Cervantes from raising this

issue on direct appeal, the assigne d error does not result in a

fundamental defect inherently resulting in a complete miscarriage

of justice. S ee United States v. Smith, 844 F.2d 203, 206 (5th2 In view of the fact that Cervantes has not properly raised

the validity of the appeal waiver provision of the plea agreement,

it is assumed valid. S ee Shaid, 937 F.2d at 231-32 (fo llowing

conviction and wa iver of direct appeal, we presume the defendant

stands fairly and finally convicted). Thus, there is no basis for

Cervantes's claim that defense counsel rendered ineffective

assistance by failing to appeal her sentence.

3 Cervantes's claim that counsel was ineffective because he

failed to renew overruled objections to the amount of cocaine used

to calculate her sentence has no merit.

6 Cir.1988) (citations omitted). Thus, we do not consider its

merits.

Similarly, we need not address the merits of Cervantes's

claims regarding the validity of her appeal waiver, the district

court's compliance with Rule 11, the government's alleged breach of

the plea agreement, or ineffective assistance of counsel concerning

failure to request a downward departure under the Guidelines. We

do not consider issues raised for the first time on the appeal of

a section 2255 motion. S ee, e.g., United State s v. Madkins, 14

F.3d 277, 279 (5th Cir.1994) (citing cases); U nited States v.

Cates, 952 F.2d 149, 152 (5th Cir .), cert. denied, 504 U.S. 962,

112 S.Ct. 2319, 119 L.Ed.2d 238 (1992). Because Cervantes failed

to raise these claims before the district court in the habeas

proceedings below, we shall not consider them in this appeal. S ee

United States v. Smith, 915 F.2d 959, 964 (5th Cir.1990) (per

curiam). 2

Cervantes's remaining claim—the only constitutional claim she

properly raises—is that defense counsel rendered ineffective

assistance by wrongfully inducing her t o plead guilty. 3 As the

case is prese nted to us today, however, the question is not the7

ultimate merits of this claim; instead, the precise question is

w hether the district court erred in denying the claim without

g ranting an evidentiary hearing. We review the district court's

decision only for an abuse of discretion. S ee Unit ed States v.

Bartholomew, 974 F.2d 39, 41 (5th Cir.1992) (per curiam).

III

A

Cervantes argues that her trial counsel rendered ineffective

assistance by inducing her to plead guilty with misrepresentations

regarding the sentence she would receive. Specifically, Cervantes

contends that her counsel stated that she would receive a sentence

of no more than 37 months in prison. She further alleges that

counsel advised her that the plea hearing would be confusing, that

she should ag ree to everything the judge said, and that he would

handle the situation. The government responds that the statements

made by Cervantes at the guilty plea and sentencing hearings, while

under oath, refute her allegations. While Cervantes concedes her

statements at these hearings, she argues that the record is bare

with respect to the conversations she had with her attorney and,

therefore, that the district court should have held an evidentiary

hearing to resolve the issue. We, therefore, address whether the

record before us requires a hearing on her claim of ineffective

counsel.

B

(1)

To be constitutionally valid, a guilty plea must be knowing8

and voluntary. H armason v. Smith, 888 F.2d 1527, 1529 (5th

Cir.1989). Thus, a guilty plea may be invalid if induced by

defense counsel's unkept promises. See id. On the other hand, a

defendant ordinarily will not be heard to refute her testimony

given at a plea hearing while under oath. U nited States v. Fuller,

769 F.2d 1095, 1099 (5th Cir.1985). "Solemn declarations in open

court carry a strong presumption of verity," forming a "formidable

barrier in any subsequent collateral proceedings." Blackledge v.

Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-29, 52 L.Ed.2d 136

(1977).

Nevertheless, a defendant may seek habeas relief on the basis

of alleged promises, though inconsistent with representations she

made in open court when entering her guil ty plea, by proving (1)

the exact terms of the alleged promise, (2) exactly when, where,

and by whom the promise was made, and (3) the precise identity of

an eyewitness to the promise. S ee Harmason, 888 F.2d at 15 2 9

(citations omitted). If the defendant produces independent indicia

of the likely merit of her al legations, typically in the form of

one or more affidavits from reliable third parties, she is entitled

to an evidentiary hearing on the issue. S ee id. If, however, the

defendant's showing is inconsistent with the bulk of her conduct or

otherwise fails to meet her burden of proof in the light of other

evidence in the record, an evidentiary hearing is unnecessary. S ee

United States v. Smith, 844 F.2d 203, 208 (5th Cir.1988) (per

curiam); U

nited States v. Raetzsch, 781 F.2d 1149, 1152 (5th

Cir.1986).4 We shall assume the affidavits of Cervantes's sisters qualify

as affidavits of "reliable" third parties.

9 (2)

Cervantes submitted affidavits from her sisters regarding the

alleged promises of her trial counsel, of which at least one

satisfied the requirement of specific ity necessary to warrant an

evidentiary hearing. 4 Becky Ayala's affidavit adequately described

counsel's alleged promises, who was present, as well as when and

where the alleged promises were made. Cervantes, however, did not

file the affidavits with her section 2255 motion, but instead, as

an "Amendment to Section 2255 Motion." The government had already

filed a responsive pleading asserting that an evidentiary hearing

would be unnecessary because Cervantes's claims of inducement were

refuted by her testimony at the plea hearing. The district court,

citing our decisions in United States v. Armstrong, 951 F.2d 626

(5th Cir.1992), and Barksdale v. King, 699 F.2d 744 (5th Cir.1983),

refused to consider the affidavits because the government had

already filed a responsive pleading, and Cervantes had not sought

leave of court prior to seeking amendment, as specifically required

by Rule 15 of the Federal Rules of Civil Procedure.

Rule 15(a) per mits parties to amend their pleadings after a

responsive pleading has been served "only by leave of court or by

written consent of the adverse party." In B arksdale, we held that

because the defendant's motion to dismiss was not a responsive

pleading under Rule 15(a), the pro se plaintiff could amend his

complaint once as a matter of course before the defendant filed a10

responsive pleading. S ee 699 F.2d at 746-47. In A rmstro ng, the

habeas petitioner, proceeding pro se, attempted to raise new issues

before the district court after the government had fi led its

response to the petitioner's section 2255 motion. We refused to

consider the issues because the petitioner "had no right to amend

his pleadings without leave of court, which he did not seek," and,

therefore, the issues were not properly before the court. 951 F.2d

at 630. Under A rmstrong and Ba rksdale, we cannot say that the

district court abused its discretion in refusing to consider the

affidavits of Cervantes's sisters.

(3)

Cervantes is entitled to an evidentiary hearing only if the

existing record proves the likely merit of her specific allegations

of a promise. S ee Davis v. Butler, 825 F.2d 892, 893-95 (5th

Cir.1987). The written plea agreement, signed by Cervantes and her

attorney, was three pages long. It states several times, once in

b old letters, that no agreements, promises, or representations

existed as to what sentence Cervantes would receive. It further

explains that her sentence would be determined solely by the

district court judge, who could depart from the applicable

guideline range. The plea agreement also contains stipulated facts

describing her involvement in the distribution of cocaine.

At rearraignment, the district court judge reiterated much of

what was set forth in the plea agreement as well as the rights

Cervantes would forfeit by pleading guilty, assuring Cervantes

understood each of these matters. He specifically admonished11

Cervantes that she could not rely on anyone, even if connected to

law enforcement or the government, for promises as to what her

sentence would be. Cervantes represented to the court that she

read and understood the entire plea agreement, agreed with its

provisions, had consulted with her attorney, and had not been

induced to sign the agreement by any promises, representations, or

coercion. Finally, before confirming her guilty plea, Cervantes

affirmed her understanding that she would not be per mitted to

withdraw the guilty plea even though the sentence she received

might be harsher than she expected.

This test imony and the plain terms of the plea agreement

clearly refute Cervantes's allegations that her attor ney had

promised her a lower sentence based on an agreement with the

government. The plea agreement is short, clear, and unambiguous.

Cervantes's colloquy with the court expressly contradicts the

existence of any promises or agreements not contained in the plea

agreement. Thus, the district court did not err in dismissing

Cervantes' habeas claim without conducting an evidentiary hearing

on the issue of ineffective counsel. See Smith, 844 F.2d at 208;

see also United States v. Brewer, 60 F.3d 1142, 1145 (5th Cir.1995)

(addressing availability of evidentiary hearing on direct appeal).

IV

For the foregoing reasons, the district court's denial of

habeas relief is

AFFIRMED.12