United States District Court, N.D. Mississippi, Delta Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK, District Judge.
This matter comes before the Court on the pro se motion of federal prisoner, Edward House, Movant in this action, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Government has submitted a response to the motion, and House has replied thereto. Having considered the parties' submissions, the record, the applicable law, and the testimony offered at the evidentiary hearing held in this case, the Court finds the motion should be denied, for the reasons that follow.
Facts and Procedural Posture
House was indicted on March 25, 2010, in a one-count indictment for conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846, which carries a statutory range of imprisonment of not less than ten years and not more than life. With the assistance of counsel, House entered into a written plea agreement that expressly waived all appeal rights in the case, except for claims of ineffective assistance of counsel and prosecutorial misconduct, in the event that a motion for downward departure pursuant to § 5K1.1 of the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") was filed and granted. ( See Presentence Investigation Report ("PSR") ¶ 3). On August 10, 2010, House pleaded guilty to the charge of conspiracy to distribute cocaine.
At his sentencing on January 31, 2011, House did not object to the findings of the PSR, which was adopted without change by the Court. ( See Sentencing Tr. at 6-7). House was designated a career offender with a criminal history category VI and a total offense level of 34. ( See PSR ¶ 27, ¶ 36, ¶ 38; Sentencing Tr. at 7). Based upon his total offense level and his criminal history category, House's sentencing guideline range was 262 to 327 months' imprisonment. (Sentencing Tr. at 7). The Court departed below the advisory guideline range at sentencing, however, after it granted the Government's § 5K1.1 motion for a downward departure. ( See Sentencing Tr. at 7-8). House was sentenced to 192 months' imprisonment. ( Id. at 8). The Court reviewed House's appellate waiver with him at sentencing, and he stated his understanding of the sentence that was imposed. ( See id. at 9-10). Judgment was entered on February 7, 2011. ( See doc. no. 180).
On or about December 20, 2011, House filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting the following two claims of ineffective assistance of counsel: (1) that House requested that his counsel file a notice of appeal three days after his sentencing hearing, but that counsel failed to file an appeal; and (2) that counsel failed to challenge House's status as a career offender under U.S.S.G. §4B1.1. Thereafter, the Court entered an order requiring the Government to respond to House's motion, and the Government's response was filed on July 24, 2013. Attached as an exhibit to the response is an affidavit by House's counsel, LeRoy Percy ("Percy"), who states that "[a]t no time did Edward House or anyone else ask me to file a notice of appeal on House's behalf[.]" (Response, Ex. F, Aff. of LeRoy Percy). The Court subsequently entered an order requiring House to "submit an affidavit setting forth his recollection of his conversation(s) with Mr. Percy about an appeal in this case[.]" (ECF no. 328). In response to the Court's order, House submitted a signed statement stating that he could not recall ever having his appellate rights explained to him, and that he would have requested that his attorney file an appeal on his behalf if he had known the importance of making such a request. (ECF no. 331). The Court subsequently entered an order setting an evidentiary hearing.
On February 13, 2014, the Court held an evidentiary hearing for the purpose of determining whether House's attorney ever discussed an appeal with House and/or whether House ever instructed his attorney to file an appeal. Both House and Percy testified at the hearing. After judging the credibility of the witness testimony and hearing the arguments of counsel, the Court made an on-the-record finding that House never expressly requested that Percy file an appeal. The Court also determined that Percy did not fail any constitutional duty to consult with House about an appeal under the circumstances of this case. The Court now reduces that finding to a written order and considers House's remaining claim of ineffective assistance of counsel.
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164 (1982). A motion brought pursuant to § 2255 is a "means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citation omitted). There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. Collateral attack limits a defendant's allegations to those of "constitutional or jurisdictional magnitude." United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citation omitted). Relief under § 2255 is reserved, therefore, for violations of "constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
House's allegations in the instant motion are that his counsel was ineffective. The Sixth Amendment guarantees a criminal defendant the right to the "reasonably effective" assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Whether counsel has rendered constitutionally acceptable assistance requires consideration of whether trial counsel's performance was so deficient that it cannot be said that he was functioning as "counsel" within the meaning of the Sixth Amendment, and whether the deficient performance actually prejudiced the defense. See id. at 687; s ee also Boyle v. Johnson, 93 F.3d 180, 187 (5th Cir. 1996) (holding that ineffective assistance of counsel claims are analyzed under the Strickland framework). Actual prejudice results from the errors of counsel when there exists a reasonable probability that, but for the errors, the result of the proceeding would have been different. Id. at 694. The failure to prove either deficient performance by counsel or actual prejudice as a result of counsel's actions or omissions defeats a claim of ineffective assistance . Id. at 697.
The Supreme Court has held that an attorney renders ineffective assistance if he disregards a client's specific instruction to appeal from a conviction or sentence or, in certain situations, when he fails to consult with his client about an appeal. Roe v Flores-Ortega, 528 U.S. 470, 477, 480 (2000) (citations omitted). If counsel has consulted with the defendant, he renders ineffective assistance only when he fails "to follow the defendant's express instructions with respect to an appeal." Id. at 478. If counsel has failed to consult with the defendant about the possibility of an appeal, then the reviewing court must determine whether the failure breached the duty to consult . See United States v. Cong Van Pham, 722 F.3d 320, 324 (5th Cir. 2013). Counsel performs deficiently in failing to discuss the advantages and disadvantages of an appeal with a client whenever "there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Roe, 528 U.S. at 480. In assessing the existence of a duty to consult, a court is to consider "all relevant factors in a given case." Id.
In order to show prejudice as a result of counsel's performance, a defendant must demonstrate "a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484. This is true even where the defendant "has waived his right to direct appeal ...