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 

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

, and use of a firearm in furtherance of a crime of violence –
specifically, the Hobbs Act robbery conspiracy – that caused the death of another
person, in violation of 

(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, 

 (2015), and United States v. Davis, 

 (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 

, following their 2012 convictions for conspiracy to commit Hobbs

Act robbery, in violation of 

, 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 

(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, 

 (2015), and United

States v. Davis, 

 (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 

(a), and using a firearm in furtherance of a crime of violence that

caused the death of another person, in violation of 

(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 –



1The 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, 

 (2015), and United States v. Davis, 

 (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 

, 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”), 

(e)(2)(B)(ii),

was unconstitutionally vague, 

, 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.” 

(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.” 

(e)(2)(B)(ii).


                                                   4
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, 

, 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, 

 (2d Cir. 2019), abrogated on other grounds by

Lora v. United States, 

 (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] 

(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, 

 (2d Cir. 2018).

                                   III. DISCUSSION

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

enforceable. See United States v. Burden, 

 (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, 

 (2d Cir. 1995). The exceptions to the

presumption of enforceability “occupy a very circumscribed area of our

jurisprudence.” United States v. Borden, 

, 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




                                           6
sentence,” Burden, 

 (internal quotation marks omitted); and (5) where

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

 (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.


3Contrary 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] 

(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.



                                                7
       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. 

(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, 

 (2d Cir.

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

v. United States, 

 (2d Cir. 2020) (same); Moshier v. United States, 

 (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, 

, the text of our orders granting the certificates of
appealability encompasses Petitioners’ arguments in this regard.


                                                 8
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,

 (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




                                           9
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).” 

 (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 . . . 

 . . .

[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, 

, we

see no reason to reach a different result here.




                                          10
      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, 

 (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,

 (2d Cir. 2007), or that their decisions to plead guilty turned on




                                          11
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, 

, 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.” 

. 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.




                                         12
      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 

. 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, 

 (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, 

,

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, 

(9th Cir. 2021) (rejecting defendant’s appeal of conviction because, “[w]hen a




                                         13
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, 

, 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, 

 (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, 

 (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,” 

 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 

 (drug
conspiracy), 

 & 

 (attempted possession with intent to distribute
marijuana), and 

 (substantive Hobbs Act Robbery) – none of which was affected



                                                14
       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, 

, 847 (7th Cir. 2020).


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