United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OF CONFERENCE, OPINION, AND ORDER
REBECAA GRADY JENNINGS, DISTRICT JUDGE
matter is before the Court on defendant, Darrell Malone's
Motion to Vacate Order Denying Motion to Revoke Order of
Detention (the “Motion”). [DE 110]. Mr. Malone
submitted a Memorandum in Support of the Motion, [DE 112],
and the United States submitted a Response to the Motion. [DE
113]. A hearing was held in this matter on August 29, 2018,
before the Honorable Rebecca Grady Jennings, United States
District Judge, regarding the Motion, and specifically
whether Mr. Malone was denied effective assistance of counsel
to appeal his detention. The Court's official reporter
was April Dowell. Larry Fentress appeared on behalf of the
United States. James A. Earhart appeared on behalf of the
defendant, Darrell Malone, who was also present.
FACTUAL AND PROCEDURAL HISTORY
January 11, 2017, Mr. Malone was indicted in the Western
District of Kentucky on one count of conspiring to knowingly
and intentionally possess, with the intent to distribute,
methamphetamine. [DE 1]. On January 23, 2017, Mr. Malone was
arraigned before United States Magistrate Judge Colin H.
Lindsey and a detention hearing was held. [DE 21]. Magistrate
Judge Lindsey ordered Mr. Malone detained, finding that he
had failed to introduce sufficient evidence to rebut the
presumption, arising under 18 U.S.C. § 3142(e)(3), that
no condition or combination of conditions would reasonably
assure the appearance of Mr. Malone. [DE 21]. Magistrate
Judge Lindsey further found that release would present a
danger to the community of Mr. Malone committing other
offenses and that the weight of the evidence against Mr.
Malone was strong. [DE 21].
3, 2017, Mr. Malone filed a Motion to Review Order of
Detention Pending Trial.[DE 48]. Several days later, on June 7,
Mr. Malone filed a Motion for Dismissal of Attorney. [DE 49].
On June 28, 2017, United States District Judge Thomas B.
Russell granted Mr. Malone's motion to have his attorney
dismissed, and Patrick J. Renn was appointed to represent Mr.
Malone. [DE 54; DE 55]. That same day, Judge Russell set a
hearing on Mr. Malone's Motion to Review Order of
Detention Pending Trial for July 17, 2017. [DE 55].
17, 2017, Mr. Malone appeared before Judge Russell,
represented by Mr. Renn, for the hearing concerning his
Motion to Review Order of Detention Pending Trial. [DE 59].
Judge Russell heard evidence presented by both parties and
arguments from counsel. On July 27, 2017, Judge Russell
denied Mr. Malone's Motion to Review Order of Detention
Pending Trial, finding that “there is no condition or
combination of conditions that will assure the safety of the
community.” [DE 59]. No appeal of this denial was
filed. [DE 110].
September 14, 2017, Judge Russell appointed Aubrey Williams
to represent Mr. Malone, who was no longer represented by Mr.
Renn. Mr. Williams moved to withdraw on May 1, 2018. [DE 99].
Mr. Williams's motion to withdraw was granted on May 25,
2018, and James A. Earhart filed a notice of appearance for
Mr. Malone on June 1, 2018. [DE 108; DE 109]. Mr. Earhart,
Mr. Malone's fourth attorney in this matter, represents
Mr. Malone currently.
26, 2018, Mr. Malone filed the instant motion to vacate Judge
Russell's order denying Mr. Malone's Motion to Review
Order of Detention Pending Trial. [RE 110]. The Motion
presents two issues. First, Mr. Malone asks that this Court
reopen his detention hearing and grant him release pending
trial. In the alternative, Mr. Malone requests that this
Court reenter Judge Russell's order, thereby allowing him
to timely file what would otherwise be an untimely appeal. An
evidentiary hearing was requested and scheduled for August
Testimony from the August 29, 2018 Hearing before this
evidentiary hearing before this Court, Mr. Renn testified
that he met with Mr. Malone on July 28, 2017, which was the
same day Judge Russell's July 27, 2017 Order denying Mr.
Malone's Motion to Review Order of Detention was entered
on the docket. Mr. Renn could not recall whether he was aware
that the motion had been denied when they met. [Hr'g Tr.
10:10- 10:21]. Mr. Renn further testified that he did not
discuss with Mr. Malone his right to appeal that denial or
inform Mr. Malone that he had such a right. [Hr'g Tr.
Renn also testified that he received a letter from Mr.
Malone's aunt, dated August 26, 2017, in which Mr.
Malone's aunt referred to a conversation with Mr. Renn,
directly after the detention hearing, in which he was asked
to file a notice of appeal, but that Mr. Renn refused to do
so on the grounds that it would be “a waste of
time.” [Hr'g Tr. 12:16-12:21]. Mr. Renn
testified that he did not recall having that conversation.
[Hr'g Tr. 13:14-13:24].
Mr. Renn testified that he was unaware of “any new
information that [Mr. Malone] did not know at [the time of
the June 28, 2017 hearing] that had a material bearing on the
issue of dangerousness or risk of flight.” [Hr'g
Malone's aunt testified that at the time of the hearing,
Judge Russell's demeanor made it “pretty clear that
[Mr. Malone] was going to lose” and that she and Mr.
Malone's mother spoke to Mr. Renn because they
“wanted to make sure he would file an appeal on [Mr.
Malone's] behalf.” [Hr'g Tr. 29:10-29:13;
29:22-30:1]. According to Mr. Malone's aunt, Mr. ...