IAC Can Undermine Appeal Waiver, But Claim Must Be Raised in 2255 Motion

U.S. v. Browner, 2007 WL 53210 (1/9/07)(unpub'd) - The 10th holds that it can consider whether ineffective assistance ("IA") undermined the knowing and voluntary nature of the plea agreement in determining whether an appeal waiver was valid. Implicitly the 10th acknowledges the IA does not have to go directly to the appeal waiver provision. Nevertheless, the IA claim had to be addressed in a 2255, not on appeal. Appeal dismissed.