Appellate Waivers Control Anders Appeals; Ineffective-Assistance Claims Generally Deferred to § 2255

1. Introduction

In United States v. Divine Zion (3d Cir. Apr. 30, 2026) (nonprecedential), the Court of Appeals for the Third Circuit addressed an appeal by Divine Zion (a/k/a Syrron Roach) following a guilty plea to felon-in-possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). Zion’s plea agreement contained a broad appellate waiver: if he received a sentence between 30 and 37 months, he would not challenge his conviction or sentence “for any reason by any means,” except for “ineffective assistance of counsel.” The district court imposed 34 months, placing the case squarely within the waiver’s trigger range.

Despite the waiver, Zion appealed. Appellate counsel moved to withdraw under Anders v. California, asserting there were no nonfrivolous issues. Zion filed a pro se brief raising multiple claims, including alleged constitutional violations and misconduct. The core issues for the Third Circuit were (1) whether counsel’s Anders submission was adequate, (2) whether any nonfrivolous issues existed, and (3) how the appellate waiver and ineffective-assistance carveout shaped the permissible scope of review.

2. Summary of the Opinion

The Third Circuit granted counsel’s motion to withdraw and affirmed the judgment. Applying the two-step Anders framework, the court held that counsel adequately reviewed the record and explained why potential issues lacked merit. The court further held that Zion’s appellate waiver barred all issues other than ineffective assistance of counsel, and that the waiver was enforceable because: (a) the issues were within its scope, (b) Zion knowingly and voluntarily agreed to it, and (c) enforcement would not work a miscarriage of justice.

As to ineffective assistance, the court concluded (i) counsel’s performance—particularly the filing of a motion to dismiss grounded in New York State Pistol & Rifle Association, Inc. v. Bruen and Range v. Attorney General—was plainly not ineffective on the existing record, and (ii) Zion’s additional pro se ineffective-assistance allegations depended on facts outside the appellate record and thus were not suitable for resolution on direct appeal, leaving a collateral challenge under 28 U.S.C. § 2255 as the typical vehicle.

3. Analysis

3.1. Precedents Cited

  • Anders v. California, 386 U.S. 738 (1967): The foundational authority permitting counsel to withdraw when, after conscientious examination, the appeal presents no issue of arguable merit, while ensuring the court independently reviews the record. The Zion panel uses Anders as the procedural backbone for evaluating counsel’s withdrawal request.
  • United States v. Youla, 241 F.3d 296 (3d Cir. 2001): Cited for the two-step inquiry in Anders cases (adequacy of counsel’s brief; independent court review) and the objective of ensuring “adequate and fair representation” on appeal.
  • 3d Cir. L.A.R. 109.2(a): Codifies the Third Circuit’s Anders motion-and-brief procedure and the “no issue of even arguable merit” standard.
  • United States v. Marvin, 211 F.3d 778 (3d Cir. 2000): Quoted for counsel’s duties—scour the record and explain why potential issues are frivolous—standards the panel uses to deem counsel’s submission adequate.
  • United States v. Langley, 52 F.4th 564 (3d Cir. 2022): Supplies (i) the appellate standard of review for Anders cases (plenary review for nonfrivolous issues; clear error for factual findings), and (ii) the three-part test for enforcing an appellate waiver: scope, knowing/voluntary agreement, and miscarriage-of-justice exception.
  • Simon v. Gov't of Virgin Islands, 679 F.3d 109 (3d Cir. 2012): Cited via Langley for review standards in the Anders posture.
  • United States v. Brookins, 132 F.4th 659 (3d Cir. 2025) and McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429 (1988): Used to define “frivolous” (no basis in law or fact) and to distinguish claims that are “arguable on [their] merits.”
  • New York State Pistol & Rifle Association, Inc. v. Bruen, 597 U.S. 1 (2022) and Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc), vacated sub nom. Garland v. Range, 144 S. Ct. 2706 (2024); see Range v. Att'y Gen., 124 F.4th 218 (3d Cir. 2024) (en banc): These authorities contextualize counsel’s pre-plea litigation strategy—moving to dismiss the § 922(g)(1) indictment under evolving Second Amendment doctrine— and the panel’s conclusion that such advocacy cannot plausibly be characterized as constitutionally deficient on this record.
  • Thomas v. Varner, 428 F.3d 491 (3d Cir. 2005) (quoting Strickland v. Washington, 466 U.S. 668 (1984)): Provides the governing ineffective-assistance standard (deficient performance plus prejudice), and the “not functioning as the ‘counsel’ guaranteed” formulation the panel uses to reject any suggestion that counsel’s motion practice fell below constitutional minima.
  • United States v. McLaughlin, 386 F.3d 547 (3d Cir. 2004) (quoting Gov't of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984)): Supports the court’s decision not to resolve record-dependent ineffective-assistance allegations on direct appeal.
  • Massaro v. United States, 538 U.S. 500 (2003): Cited for the proposition that ineffective-assistance claims ordinarily belong in a 28 U.S.C. § 2255 motion because the direct-appeal record is usually underdeveloped.

3.2. Legal Reasoning

  1. Step One—Adequacy of the Anders filing: Applying Youla and Marvin, the court evaluated whether counsel thoroughly reviewed the record and explained why each potential issue was frivolous. Counsel’s brief addressed jurisdiction, plea colloquy, waiver validity, sentencing, counsel effectiveness, and Zion’s waiver of the right to counsel. The court found this satisfied the Third Circuit’s Anders obligations.
  2. Appellate waiver as a threshold filter: Before reaching the merits of most issues, the court enforced the plea waiver under Langley. The court found: (a) Zion’s non-ineffective-assistance claims fell within the waiver’s scope; (b) the waiver was knowing and voluntary, evidenced by the signed agreement and the district court’s explanation; and (c) enforcement would not create a miscarriage of justice. This reasoning effectively cabins the appeal to the waiver’s single preserved category: ineffective assistance.
  3. Ineffective assistance—what could be evaluated on this record: The court addressed counsel’s identifiable, record-based performance: filing a motion to dismiss the indictment grounded in Bruen and Range. Citing Thomas v. Varner and Strickland v. Washington, the panel concluded there were no serious errors—indeed, the motion “plainly rose above” ineffective assistance—foreclosing any nonfrivolous ineffective-assistance argument based on that litigation step.
  4. Ineffective assistance—what could not be evaluated on direct appeal: Zion’s pro se claims (e.g., counsel “refused to submit motions,” pressured him to plead, ignored alleged judicial/prosecutorial misconduct, and disputed the government’s description-matching narrative) were deemed dependent on facts outside the record. Under United States v. McLaughlin, Gov't of Virgin Islands v. Zepp, and Massaro v. United States, the court declined to adjudicate those allegations on direct appeal, implicitly preserving them for possible § 2255 litigation with factual development.

3.3. Impact

Although expressly “NOT PRECEDENTIAL,” the decision illustrates several practical effects in Third Circuit criminal practice:

  • Anders + waiver synergy: When a plea agreement contains a broad waiver and the sentence falls within the waiver’s trigger range, the universe of nonfrivolous appellate issues often collapses to waiver validity and any express carveouts (here, ineffective assistance).
  • Miscarriage-of-justice remains a real but narrow gate: The court’s quick rejection of any miscarriage-of-justice concern reinforces that defendants face a high bar to escape a knowingly entered waiver, even when they later allege serious misconduct in a pro se filing.
  • Second Amendment litigation posture under § 922(g)(1): The court did not reach the merits of Zion’s Second Amendment arguments, but it treated counsel’s Bruen/Range-based motion practice as a marker of competent representation—signaling that raising such arguments can be (at minimum) professionally reasonable given continuing doctrinal evolution.
  • Channeling ineffective-assistance claims to collateral review: The opinion reiterates that most ineffective-assistance disputes—especially those about advice, pressure, negotiations, and off-the-record events—will be deferred to § 2255 where an evidentiary record can be made.

4. Complex Concepts Simplified

Anders brief / Anders motion
A procedure allowing appointed appellate counsel to withdraw when counsel concludes the appeal has no “arguable” issues. Counsel must still identify potential issues and explain why they are frivolous; the court then independently reviews the record.
Appellate waiver
A plea-agreement provision where the defendant gives up (waives) the right to appeal certain issues. Courts generally enforce waivers if they are clearly worded, knowingly and voluntarily accepted, and enforcement would not cause a “miscarriage of justice.”
Miscarriage of justice (waiver context)
A narrow safety valve allowing a court to refuse to enforce a waiver in exceptional circumstances (for example, where enforcing it would be fundamentally unfair). In Zion, the court found no such exceptional circumstance.
Ineffective assistance of counsel (Strickland standard)
Under Strickland v. Washington, a defendant generally must show (1) deficient performance (lawyer’s work fell below reasonable professional standards) and (2) prejudice (a reasonable probability the result would have been different).
Why ineffective assistance is usually not decided on direct appeal
Many such claims depend on facts not in the trial record (private advice, strategy discussions, plea negotiations). Under Massaro v. United States, a § 2255 motion is usually the preferred route because it permits evidentiary development.

5. Conclusion

United States v. Divine Zion demonstrates how a valid appellate waiver can foreclose nearly all appellate issues even in the Anders context, leaving only preserved categories—here, ineffective assistance of counsel—for potential review. The Third Circuit found counsel’s record-based performance (including a Bruen/Range-informed motion to dismiss) plainly adequate under Strickland, and it declined to adjudicate Zion’s remaining ineffective-assistance allegations because they required factual development better suited to a § 2255 proceeding. The decision thus reinforces a pragmatic rule: in waived, post-plea appeals, the key battlegrounds are waiver enforceability and carefully framed, record-supported claims that fit within any waiver carveouts.