United States District Court, E.D. Kentucky, Southern Division, London
MAGISTRATE JUDGE'S REPORT &
B. ATKINS, UNITED STATES MAGISTRATE JUDGE.
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.
FACTUAL & PROCEDURAL BACKGROUND
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].
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.
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
INEFFECTIVE ASSISTANCE OF COUNSEL
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
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).
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.
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.
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.
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
Did consultation regarding sturgill's right to appeal his
competency determination occur?
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
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?
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?
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 ...