United States District Court, E.D. Kentucky, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On August 19, 2013, Jamiel Beard, pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255, asserting two claims of ineffective assistance of counsel. (R. 53). On December 10, 2013, upon motion of the United States, an evidentiary hearing was held wherein Beard was represented by Attorney David Sloan. (R. 59, 63). At the conclusion of the evidentiary hearing, the Court entered a briefing schedule. (R. 67). On January 7, 2014, the United States filed a Response to Beard's § 2255 Motion. (R. 71). On February 20, 2014, Beard, through counsel, filed a Reply (R. 80). Having all relevant documents before the Court and having completed the evidentiary hearing, the matter is now ripe for consideration and preparation of a Report and Recommendation. 28 U.S.C. § 636(b). For the reasons stated below, it will be herein recommended that Beard's Motion be denied.
I. FACTUAL AND PROCEDURAL HISTORY
On October 7, 2011, officers with the Kentucky Division of Probation and Parole conducted a home visit at Beard's residence and located a firearm in his possession. (R. 46, at ¶ 3). On the date of the home visit, Beard was on federal supervised release in case 2:01-cr-59 (E.D. Ky.).
On March 8, 2012, a federal grand jury returned an Indictment in the case at bar, charging Beard with one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). (R. 1). On April 2, 2012, Beard appeared before the presiding District Judge for an initial appearance and arraignment on the Indictment, and also for an initial appearance on a charge that he violated the conditions of his supervised release in case 2:01-cr-59. (R. 6, See also United States v. Beard, 2:01-cr-59, Docket Entry 69 (E.D. Ky. Apr. 2, 2012). On April 24, 2012, the Government filed a Notice Regarding Enhanced Statutory Punishment, setting forth Beard's three prior felony convictions that the Government argued subjected Beard to the enhanced statutory punishment under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). (R. 14).
On October 2, 2012, Beard entered into a binding Plea Agreement with the United States pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), whereby he agreed to plead guilty to being a felon in possession of a firearm in exchange for an agreement that any sentence imposed for his supervised release violation in case 2:01-cr-59 would run concurrent with the agreed-upon 180-month term of imprisonment on the felon in possession charge. (R. 46, R. 75, at 2-3). In addition, Beard agreed to waive his right to appeal, but he did not waive his right to collaterally attack the guilty plea, conviction, and/or sentence. (R. 46, at ¶ 7).
At the rearraignment hearing on October 16, 2012, the District Court engaged Beard in a line of questioning to insure Beard understood the terms of the Agreement. (R. 75). The Court specifically discussed the significance of a Rule 11(c)(1)(C) plea agreement, explaining to Beard that if the Court accepted the Agreement, it was required to sentence him to 180 months of incarceration with the supervised release sentence to run concurrent. ( Id. at 13, 15). Beard acknowledged multiple times that he understood the binding nature of the Agreement. ( Id. ).
The District Court also reviewed with Beard the waiver provision contained in the Agreement, which waived his right to appeal. The Court specifically asked Beard if he understood that he was waiving "all [his] appellate rights." Beard acknowledged his understanding of the waiver provision. (R. 75, at 18-19). The Court concluded that Beard's waiver of his appellate rights was knowing and voluntary. ( Id. at 19-20).
Further, the Court discussed with Beard's retained counsel W. Robert Lotz and the Assistant United States Attorney ("AUSA") whether the prior convictions qualified Beard for the armed career criminal enhancement, which by statute subjected Beard to the statutory minimum sentence of 180 months. ( Id. at 21). The AUSA explained the three prior felonies that were the basis for the enhancement. Attorney Lotz acknowledged that he had researched the law and had performed his due diligence to make sure that the sentence being proposed in the binding Agreement was, in fact, a proper sentence. ( Id. ).
After this colloquy, the Court concluded that Beard was fully competent and capable of entering an informed plea, and he understood the nature of the charges and the consequences of entering the plea. (R. 75, at 24). Thus, the District Court found Beard's plea of guilty was knowing and voluntary and approved and accepted the Plea Agreement. ( Id. at 24; see also R. 44, 46).
On January 25, 2013, the District Court sentenced Beard consistent with the binding Plea Agreement. Beard was sentenced to 180 months of imprisonment on the felon in possession of a firearm charge and to 54 months on the supervised release violation in 2:01-cr-59, to run concurrent with the 180-month term imposed in the current action. ( Id .; see also R. 76, at 13). Beard did not file an appeal.
On August 19, 2013, Beard filed the pending § 2255 Motion presenting two claims of ineffective assistance of counsel: 1) counsel failed to file a notice of appeal despite his request that one be filed; and 2) counsel failed to object to the application of the ACCA. (R. 53). On December 10, 2013, the Court held an evidentiary hearing on these issues, wherein Beard and Lotz testified. (R. 67, 78). Upon counsel's representation that neither party intended to present further evidence or testimony, the Court closed the evidentiary hearing at the conclusion of the hearing and set a briefing schedule. (R. 78, at 98-99). In accordance with that schedule, the United States filed its Response to Beard's § 2255 Motion (R. 71), to which Beard filed a Reply (R. 80).
Under 28 U.S.C. § 2255, a federal prisoner may seek habeas relief on grounds that his conviction or sentence violated the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, or the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). Here, Defendant alleges his counsel's performance violated his Sixth Amendment right to counsel by: 1) failing to file a notice of appeal despite his request that one be filed; and 2) failing to object to the application of the ACCA. (R. 53).
The Supreme Court has held that [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To meet this standard, the Court set forth a two-part test. First, a defendant is required to show that counsel's representation fell "below an objective standard of reasonableness." Id. at 687-88. In reviewing this prong, the court is to apply a deferential standard, i.e. there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. If a defendant satisfies the first prong, he must also establish that counsel's deficient performance prejudiced him. Id. at 691-94. Specifically, he must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Defendant must establish both prongs by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
A. Failure to File a Notice of Appeal
Beard claims that he received ineffective assistance of counsel because his counsel failed to file an appeal on his behalf after he "specifically requested" counsel do so. (R. 53-1, at 4). Failure to file an appeal upon a defendant's express request is per se ineffective assistance of counsel. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000); Campbell v. United States, 686 F.3d 353, 358 (6th Cir. 2012) (citing Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)). The Sixth Circuit has held "even when a defendant waives all or most of his rights to appeal, an attorney who fails to file an appeal that a criminal defendant explicitly requests has, as a matter of law, provided ineffective assistance of counsel that entitles the defendant to relief in the form of a delayed appeal." Campbell, 686 F.3d at 360. Therefore, if this Court were to determine that Defendant explicitly directed Attorney Lotz to file a notice of appeal and Lotz failed to do so, Beard would be entitled to file a delayed appeal. Id.
Here, conflicting testimony was heard at the evidentiary hearing on whether Beard specifically instructed Attorney Lotz to file a notice of appeal on his behalf. On this issue, Beard testified on direct examination as follows:
Q. But did you explicitly request or direct Mr. Bob Lotz as your attorney to file an appeal of this judgment in a criminal case after you were sentenced?
A. Yes, sir.
Q. Has that been done?
A. No, sir.
Q. And when did you do that?
A. After final sentencing.
Q. Was that in the courtroom or in the jail or -
A. In the courtroom, in the - in the courtroom before I was ushered ...