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United States v. Sturgill

United States District Court, E.D. Kentucky, Southern Division, London

October 3, 2018

UNITED STATES OF AMERICA PLAINTIFF,
v.
MIKE STURGILL, DEFENDANT.

          MAGISTRATE JUDGE'S REPORT & RECOMMENDATION

          EDWARD B. ATKINS, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The Defendant, Mike Sturgill, brings this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. [R. 813]. Consistent with local practice, the matter is before the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the following reasons, the Court recommends that Sturgill's motion be denied.

         II. FACTUAL & PROCEDURAL BACKGROUND

         Mike Sturgill was indicted for conspiracy to distribute oxycodone in violation of 21 U.S.C. § 846. [R. 177]. Following his indictment, counsel moved for a competency hearing, based on Sturgill previously being found unable to handle both his financial and personal affairs, as well as having a legal guardian appointed for his benefit. [R. 302]. On December 30, 2015, the Court granted Defendant's Motion to determine competency and ordered a psychological evaluation pursuant to 18 U.S.C. § 4241(a). The psychological evaluation took place at the Federal Medical Center (FMC) in Lexington, Kentucky, from January 11, though February 25, 2016. [R. 370 at 2] (Note Error in report; 2015 should have stated 2016. See R. 430 at 12). Dr. Judith Campbell was the evaluating clinician and author of the forensic report regarding Defendant Sturgill. [Id. at 2-12]. Dr. Campbell found that Defendant Sturgill is “not currently suffering from a mental disease or defect rendering him mentally incompetent… [and he] is currently competent to stand trial.” [Id. at 11-12]. Dr. Campbell testified to her findings and conclusions at a competency hearing held on April 13, 2016. [R. 399]. Subsequently, Sturgill filed a brief disputing Dr. Campbell's findings and conclusions, and asked the Court to find him incompetent. [R. 449]. Following the Government's Response Brief, [R. 455], and Defendant's Reply Brief, [R. 456], the Magistrate Judge recommended that Defendant Sturgill was competent to stand trial. [R. 463]. Pursuant to the Federal Rule of Criminal Procedure 59(b), Defendant timely objected to the Magistrate Judge's recommendation. [R. 467]. Despite this objection, the District Court adopted the Magistrate Judge's recommendation as the opinion of the Court. [R. 474].

         One week after the District Court adopted the recommendation as the opinion of the Court, the Defendant moved for rearraignment. [R. 481]. At his rearraignment, Defendant plead guilty to Count 2 of the Second Superseding Indictment, conspiracy to distribute oxycodone. [R. 497]. Prior to sentencing, Defendant moved for a downward departure from the sentencing guidelines and objected to the presentence investigation report, based in part on a claim of diminished capacity pursuant to USSG § 5K2.13. [R. 633 & 634]. Defendant was later allowed to file a brief on diminished capacity, so that the issue could be further vetted. [R. 681]. The matter being fully briefed, the Court overruled the objection and sentenced Defendant Sturgill to a guideline-range term of imprisonment of 120 months, followed by 10 years of supervised release. [R. 710-13]; [R. 821: Sent. Tr.]. No appeal was ever filed.

         On January 22, 2018, Sturgill timely filled the instant 28 U.S.C. § 2255 motion to vacate, alleging one claim of ineffective assistance of counsel. [R. 813]. Specifically, he contends that his court-appointed attorney, Mr. Williams, performed so ineffectively that he failed to consult with him on whether he wished to appeal the competency determination or not. [R. 813-1 at 2]. To support his accusation, he claims that Mr. Williams deficiently performed and thus was ineffective, because he failed to advise that: (1) the Court's ruling, supposedly, conflicts with other decisions regarding the correlation of I.Q. scores with competency determinations; (2) the evaluation of the defendant, by Dr. Campbell, was not as thorough as at least one other case; and (3) that the recommendation included in the evaluation was logically flawed given the finding that his mental abilities would render it difficult for him to hold a job or manage money, yet he could assist in his defense and is competent to stand trial. [R. 813-1]. Furthermore, Sturgill argues that he can show Mr. Williams's substandard performance prejudiced him, because had he known there were “conflicts with other district court decisions” and that “Dr. Campbell left out important evidence” in her evaluation, he would have insisted on appealing the issue. [Id. at 7]. Additionally, he argues that being deprived of his right to appeal is also a prejudice against him. [Id.] Sturgill requests appellate review of his competency determination. [R. 813 at 12]. For reasons explained more fully below, the Court recommends that Sturgill's motion be denied.

         III. INEFFECTIVE ASSISTANCE OF COUNSEL

         Within his motion, Sturgill raises one argument of alleged ineffective assistance of counsel; (I) that counsel failed to consult with him regarding whether he wished to appeal the competency determination. To support this argument Sturgill claims that: (A) counsel's performance was, supposedly, deficient and thus ineffective, because: (1) the competency determination was in conflict with other Court decisions; (2) the competency evaluation was not thorough; and (3) the recommendation given in the evaluation were not in line with logic, and (B) counsel's substandard performance prejudiced the defendant, because: (1) had he known of the above stated issue with performance he would have insisted on appealing the determination; and (2) counsel's failure to consult with him on the appeal deprived him of the right to appeal. [R. 813-1]. Before the Court addresses Sturgill's claims, it must first determine the standard of review to apply.

         A. Legal Standard

         The United States Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), announced that the test for assessing ineffective assistance of counsel for failure to file a notice of appeal is the familiar two-pronged inquiry of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Regalado v. United States, 334 F.3d 520, 524 (6th Cir. 2003). The inquiry requires that the Court first ask whether trial counsel's performance fell below reasonably accepted professional standards. Id. Put another way, the Court must assess whether “counsel's performance was constitutionally deficient such that he was not functioning as the ‘counsel' guaranteed by the Sixth Amendment. Id. (citing Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001)). In assessing the attorney's conduct under Strickland's first prong, the Supreme Court instructed that “courts must ‘judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct,' and ‘judicial scrutiny of counsel's performance must be highly deferential.'” Regalado, 334 F.3d at 524 (quoting Roe, 528 U.S. at 477, 120 S.Ct. at 1029). The second component of the Strickland inquiry requires the Court to determine whether “counsel's deficient performance prejudiced the defendant.” Id. To establish this prejudice, the petitioner must “demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Regalado, 334 F.3d at 524 (quoting Magana, 263 F.3d at 547; Strickland, 466 U.S. at 694, 104 S.Ct. at 2052).

         In Roe, the Court reiterated its prior decisions rebuking attorneys for failing to file appeals after clients so specifically instructed. Regalado, 334 F.3d at 524. The Court referred to its decision in Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), stating that it is “professionally unreasonable” for a lawyer to fail to file an appeal when specifically instructed to do so. Regalado, 334 F.3d at 524 (citing Roe, 528 U.S. at 477, 120 S.Ct. at 1029; see also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (holding that counsel's failure to perfect a direct appeal upon his client's request is per se Sixth Amendment violation)). The result, in such a situation, is that a defendant is entitled to a delayed appeal and need not show any likelihood of success on the merits. Regalado, 334 F.3d at 525 (see Roe, 528 U.S. at 477, 120 S.Ct. at 1029). The Sixth Circuit has gone on to expand this protection for defendant(s) who have waived all or most of their right to appeal. Campbell v. United States, 686 F.3d 353, 360 (6th Cir. 2012). Even though the defendant has waived all or some of his rights to appeal, attorneys will still be found to have provided ineffective assistance of counsel if the attorney fails to file an appeal that a criminal defendant explicitly requests. Id.

         Nevertheless, in Roe, “the Supreme Court ‘rejected a bright-line rule that counsel must always consult with the defendant regarding an appeal.'” Johnson v. United States, 364 Fed.Appx. 972');">364 Fed.Appx. 972 (6th Cir. 2010) (citing Roe, 528 U.S. at 480). Rather, defense counsel's obligation to consult his client depends on the totality of the circumstances. Id. Consultation occurs when the attorney “advis[es] the defendant about the advantages and disadvantages of taking an appeal, and mak[es] a reasonable effort to discover the defendant's wishes.” Regalado, 334 F.3d at 525 (citing Roe, 528 U.S. at 478, 120 S.Ct. at 1029). If consultation has occurred, then “[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal.” Id. If, on the other hand, counsel failed to consult with his client, then the court must address whether the failure to consult, by itself, is indicative of deficient performance.” Id. “Counsel's failure to consult is unreasonable if (1) ‘a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal),' or (2) ‘this particular defendant reasonably demonstrated to counsel that he was interested in appealing.'” Johnson v. United States, 364 Fed.Appx. 972 (6th Cir. 2010) (citing Roe, 528 U.S. at 480). “In determining whether counsel's failure to consult was reasonable, a court must consider all the information counsel knew or should have known. Id. “Factors to consider include whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.” Id. “However, even in cases involving a plea of guilty, the reviewing court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.” Id.

         Lastly, Roe sets forth a three-part sequential analysis. “First, we must determine whether the defendant gave counsel express instructions regarding an appeal. Second, if we find that the defendant did not provide express instructions, then we must determine whether counsel consulted with the defendant about an appeal. Finally, if there was no consultation, then we must decide whether the failure to consult was objectively unreasonable.” Id. Having determined the appropriate standard of review to apply, the Court now turns to Sturgill's claims of ineffective assistance of counsel.

         B. Analysis

         As mentioned above, Sturgill asserts one (1) claim of ineffective assistance of counsel. His only claim is that his counsel, Mr. Williams, failed to consult him on whether he wished to appeal his competency determination. [R. 813-1]. Thus, Sturgill does not claim that he told Mr. Williams to file an appeal and Mr. Williams did not. This leaves only the issues of whether counsel consulted with Sturgill regarding his right to appeal the competency determination, and if not whether failure to consult was objectively unreasonable.

         1. Did consultation regarding sturgill's right to appeal his competency determination occur?

         In the present situation, Mr. Williams did consult with the defendant regarding his right to appeal. Sturgill even said as much at his rearraignment:

THE COURT: Now, you have the right to do that, to take an appeal up, but you can give up that right. Do you understand that?
DEFENDANT: Yeah.
THE COURT: In your plea agreement you are giving up the right to appeal your guilty plea or your conviction. You won't be able to go to the Court of Appeals and say that there was something wrong with your guilty plea or that you should not have been convicted. Do you understand that?
DEFENDANT: Yeah.
THE COURT: But you're keeping your right to appeal your sentence. You can appeal and challenge the sentence in your case. Do you understand that?
DEFENDANT: Yeah.
THE COURT: All right. Now, that's your right of appeal. You also have a right to make what's called a collateral attack. Now, that's basically filing a lawsuit to claim that your conviction or your sentence was ...

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