United States of America v. Dayon J. Fips, also known as Dayon Ballard

United States Court of Appeals
For the Eighth Circuit
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No. 20-1260
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United States of America
Plaintiff - Appellee
v.
Dayon J. Fips, also known as Dayon Ballard
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 14, 2020
Filed: January 25, 2021
[Unpublished]
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Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
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PER CURIAM.
In this direct appeal following entry of a guilty plea and judgment of
conviction, Dayon Fips argues that he received constitutionally ineffective
assistance from prior counsel, who represented him before the district court1 for a
1 The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.

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short time. With the assistance of different counsel before the district court,
however, Fips entered into a plea agreement, which the district court accepted, that
included a “Waiver of Appeal and Post-Conviction Rights” provision (“Waiver
Provision”). We find this appeal waiver applicable and enforceable, so we dismiss
this appeal.
We consider de novo “issues concerning the interpretation and enforcement
of a plea agreement and the application of appeal waivers.” United States v.
Dallman, 886 F.3d 1277, 1280 (8th Cir. 2018). We will enforce an appeal waiver
and dismiss the appeal if: (1) the appeal falls within the scope of the waiver; (2) the
plea agreement and waiver were entered into knowingly and voluntarily; and
(3) enforcing the waiver will not cause a miscarriage of justice. Id. at 1279-80;
United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011). These conditions are
satisfied here.
First, Fips’s ineffective-assistance claim falls within the scope of his appeal
waiver. “We interpret plea agreements according to their plain language,” United
States v. Manzano-Huerta, 809 F.3d 440, 444 (8th Cir. 2016), and “we apply general
contract principles and try to discern the intent of the parties as expressed in the plain
language of the agreement when viewed as a whole,” United States v. Lara-Ruiz,
681 F.3d 914, 919 (8th Cir. 2012) (internal quotation marks omitted). In the direct-
appeal subsection of the Waiver Provision, Fips waived his right to raise on direct
appeal “all non jurisdictional . . . issues,” and no exception was made in this
subsection for ineffective-assistance claims. By comparison, in the habeas corpus
subsection of the Waiver Provision, Fips waived “all rights to contest the conviction
or sentence in any post-conviction proceeding . . . except for claims of . . . ineffective
assistance of counsel.” Particularly in light of the absence of a carveout for
ineffective-assistance claims in the direct-appeal subsection despite the inclusion of
such a carveout in the habeas corpus subsection, we have no trouble concluding that,
by the expansive plain language of the direct-appeal subsection, Fips waived the
right to bring an ineffective-assistance claim on direct appeal unless it somehow
implicated a jurisdictional issue. Fips claims only that his prior counsel’s ineffective

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assistance compromised his ability to litigate the merits of his defense, which does
not implicate a jurisdictional issue, so his ineffective-assistance claim is within the
scope of the appeal waiver.
Second, Fips knowingly and voluntarily agreed to the appeal waiver. During
the plea colloquy, the district court specifically discussed, and asked Fips under oath
if he understood, various provisions of the plea agreement, including the Waiver
Provision. Fips explicitly acknowledged he understood. The district court also
asked Fips under oath if he entered into the plea agreement voluntarily, and Fips
confirmed he did. “[Fips’s] sworn testimony at the plea hearing shows that he
entered into the plea agreement, and the appeal waiver, knowingly and voluntarily.”
United States v. Sohl, 632 F. App’x 302, 302 (8th Cir. 2016) (per curiam); see also
Boroughf, 649 F.3d at 890 (“[O]ur review of the transcript from the change-of-plea
hearing shows the plea agreement and appeal waiver were entered into knowingly
and voluntarily.”).
Third, enforcing the appeal waiver will not result in a miscarriage of justice,
which is a “very narrow exception to the general rule that waivers of appellate rights
are enforceable.” See United States v. Blue Coat, 340 F.3d 539, 542 (8th Cir. 2003).
“[O]rdinarily, we do not address claims of ineffective assistance of counsel on direct
appeal” anyway, but instead we require such claims to be raised in postconviction
proceedings. United States v. Adkins, 636 F.3d 432, 434 (8th Cir. 2011). The plea
agreement leaves that option open to Fips, so he is not without recourse to pursue
his ineffective-assistance claim if we follow our usual rule and refuse to consider
this claim now. See United States v. Vondal, 394 F. App’x 336, 337 (8th Cir. 2010)
(per curiam) (enforcing an appeal waiver and declining to consider an ineffective-
assistance claim within the scope of that waiver because, inter alia, “ineffective-
assistance claims are more properly raised in a proceeding under 28 U.S.C. § 2255,
and [the defendant] reserved her right to do so” (citation omitted)).

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Granted, we have suggested that, under this miscarriage-of-justice exception,
we may consider on direct appeal an ineffective-assistance claim otherwise within
the scope of an appeal waiver when the claim is that “the plea agreement itself is the
result of advice outside the range of competence demanded of attorneys in criminal
cases.” DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir. 2000) (internal
quotation marks omitted); see also United States v. Andis, 333 F.3d 886, 891 (8th
Cir. 2003) (en banc) (citing DeRoo as an example of when the miscarriage-of-justice
exception may apply). But Fips’s claim, based on conduct of prior counsel who did
not represent him when he entered into the plea agreement, is not this kind of
ineffective-assistance claim.
Therefore, we enforce Fips’s appeal waiver and dismiss this appeal.
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