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United States v. Spaeth.

No. 21-3096. Sixth Amendment Right to Counsel—Plea Agreement—28 USC § 2255 Motion—Pre-Plea Constitutional Claims.

June 12, 2023

Spaeth was indicted on 25 counts related to an extensive methamphetamine trafficking conspiracy and placed in pretrial detention. While in pretrial detention, Spaeth placed five recorded telephone calls to his appointed counsel. Four months after the fifth call, Spaeth agreed to plead guilty to the drug-conspiracy charge in exchange for the government’s dismissing the remaining charges and recommending a binding sentence of 180 months’ imprisonment. In Spaeth’s petition to enter a guilty plea and his written plea agreement, and during the Fed. R. Crim. Proc. 11(c)(1)(C) plea colloquy, Spaeth acknowledged that his plea was entered freely, voluntarily, and knowingly, and that he was satisfied with his counsel’s advice. Spaeth’s plea agreement waived his right to appeal or collaterally attack his conviction, sentence, or prosecution, subject to a reservation of his rights to subsequent claims regarding ineffective assistance of counsel or prosecutorial misconduct. At Spaeth’s sentencing hearing, the assistant US attorney told the court that the government suspected Spaeth of involvement in a drug conspiracy at the detention facility for which he might later be charged. As part of that investigation, the government had subpoenaed recordings of outgoing telephone calls placed by about 40 detainees, which included Spaeth’s five calls with his counsel. Spaeth subsequently filed a 28 USC § 2255 motion to vacate his conviction and term of imprisonment or to reduce his sentence, alleging that the government violated his Sixth Amendment right to counsel by obtaining recordings of his calls with his counsel. The district court denied the motion because Spaeth did not address the legal consequences of guilty pleas under Tollett v. Henderson, 411 U.S. 258 (1973). The district court invited Spaeth to amend his motion to seek relief under Tollett, but Spaeth instead sought and obtained a certificate of appealability (COA) on three issues and appealed. In his notice to the court, Spaeth acknowledged that this would result in the dismissal of his § 2255 motion. The court honored Spaeth’s choice and dismissed his § 2255 motion with prejudice.

On appeal, the Tenth Circuit considered Spaeth’s COA issues: (1) whether the government waived Tollet’s applicability, (2) whether Tollett procedurally bars his Sixth Amendment claim, and (3) whether Tollett precludes him from challenging his sentence based on an alleged pre-plea Sixth Amendment violation. When a defendant voluntarily and knowingly pleads guilty, the defendant acknowledges that unconstitutional conduct preceding the guilty plea is irrelevant to the admission of factual guilt. Under Tollett, challengers raising pre-plea constitutional claims must show ineffective assistance of plea counsel that causes their pleas to be involuntary and unknowing. Here, Spaeth did not contend that his counsel performed deficiently or that deficient performance prejudiced him by depriving him of a trial right he would have chosen, and the record reflects that the five attorney-client intrusions occurred pre-plea and were not linked to his sentencing. The Tenth Circuit determined that the government could not and did not waive application of Tollett, which bars Spaeth’s Sixth Amendment claim and precludes his attempt to recast a pre-plea claim as an ongoing sentencing error. Therefore, Spaeth did not meet his burden under Tollett to vacate his unconditional guilty plea, and the district court properly dismissed his § 2255 motion.

The order was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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