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United States v. Malone

United States District Court, W.D. Kentucky, Louisville Division

September 21, 2018

UNITED STATES OF AMERICA Plaintiff
v.
DARRELL MALONE Defendant

          MEMORANDUM OF CONFERENCE, OPINION, AND ORDER

          REBECAA GRADY JENNINGS, DISTRICT JUDGE

         This 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         A. Background.

         On 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].

         On June 3, 2017, Mr. Malone filed a Motion to Review Order of Detention Pending Trial.[1][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].

         On July 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].

         On 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.

         On July 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 29, 2018.

         C. Testimony from the August 29, 2018 Hearing before this Court.

         At the 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. 11:7-11:9].

         Mr. 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.”[2] [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].

         Lastly, 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 Tr. 21:17-21:23].

         Mr. 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. ...


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