United States District Court, E.D. Kentucky, Southern Division, Pikeville
REPORT & RECOMMENDATION
CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE
Howard Harlow Back, proceeding pro se, has filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255. (R. 410). The United States has filed
its Response, wherein the Government took the position that
the Court should grant relief to Defendant in the form of
allowing him to file a delayed notice of appeal. (R. 420).
The United States attached an affidavit of Defendant's
former counsel, Billy G. Slone, to its Response. In said
affidavit, counsel admitted that he failed to ensure
Defendant Back's appeal was filed. (R. 420-1). Defendant
has filed his Reply to the Government's Response, asking
that the Court adopt the Government's position and allow
Defendant Back to file a notice of appeal. (R. 423).
all relevant documents before the Court, the matter is ripe
for consideration and issuance of a Report and
Recommendation. 28 U.S.C. § 636(b). As sufficient
undisputed evidence of ineffective assistance of counsel is
present in the record as set forth infra, an
evidentiary hearing is unnecessary. For the reasons set forth
below, it will be recommended that Defendant's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (R. 410) be granted.
November 15, 2012, a federal grand jury returned a Second
Superseding Indictment against Defendant Back, as well as
several codefendants. Defendant Back was charged with twelve
counts of knowingly and intentionally distributing a quantity
of pills containing oxycodone, a Schedule II controlled
substance, as well as one count of conspiring with others to
do so, in violation of 21 U.S.C. § 841(a)(1) and 21
U.S.C. § 846, respectively. (R. 145). A three-day jury
trial commenced on January 28, 2013, at the conclusion of
which the jury returned a verdict of guilty on all charges.
(R. 186; R. 195). Prior to sentencing, Defendant fired his
trial attorney, Stephen Owens, and decided to proceed with
sentencing pro se. (See R. 270).
Subsequently, on November 7, 2013, the Court entered a
Judgment sentencing Defendant to, inter alia, 262
months of imprisonment. (R. 254; R. 259).
filed a Notice of Appeal on November 8, 2013. (R. 255). On
December 14, 2014, the Sixth Circuit Court of Appeals entered
an Order affirming the conviction. (R. 319). Likewise, the
Sixth Circuit subsequently denied Defendant's petition
for rehearing on May 28, 2015. (Id.).
October 26, 2015, Defendant filed his first § 2255
Motion (R. 337), which was granted in part by the then
presiding District Judge on March 10, 2017. (R. 382). Back
claimed that his sentencing violated due process and the
Sixth Amendment because the Court allowed him to proceed
pro se at sentencing, even though he never waived
his right to counsel. (R. 357-2, at 3). The presiding
District Judge noted that “Back's claim reaches a
complicated area of law surrounding implied waivers of
counsel, and there is some discrepancy in the record as to
Back's understanding of his rights at sentencing.”
(R. 382). Accordingly, “out of an abundance of
caution” the Court granted Defendant's first §
2255 Motion as to that issue alone. (Id.). The Court
also appointed counsel Billy G. Slone for the limited purpose
of sentencing. (Id. at 2). Following a re-sentencing
hearing, on August 1, 2017, the presiding District Judge
entered an Amended Judgment reducing Defendant's sentence
from 262 months to 210 months. (R. 404).
March 2, 2018, Defendant filed the subject § 2255
Motion, raising two grounds of ineffective assistance of
counsel (“IAC”). (R. 410). First, Defendant
asserts that following the July 27, 2017 resentencing
hearing, he “received ineffective assistance of counsel
when his lawyer failed to file a notice of appeal.” (R.
410, at 4). Defendant also asserts that he “received
IAC when at resentencing his lawyer failed to object to a
sentence that was procedurally and substantively
United States filed a Response to Defendant's § 2255
Motion, taking the position that the Court should grant
Defendant's subject § 2255 Motion “because he
has shown that he suffered prejudice.” (R. 420) (citing
Campbell v. United States, 686 F.3d 353, 357-58 (6th
Cir. 2012)). In support of its conclusion, the Government
asserts that Defendant's appointed sentencing counsel,
Billy G. Slone, confirmed Defendant's statement that he
specifically told his counsel that he wanted to appeal the
newly-imposed sentence. (R. 420, at 2). The Government
attached Attorney Slone's Affidavit to its Response,
wherein Slone attests that “Mr. Back handed me a
document containing several pages and told me that this was
his appeal and he wanted it mailed to the Sixth Circuit Court
of Appeals. I believe I mailed the documents that same
day.” (See R. 420-1). The Government notes
that, “[h]owever, no notice of appeal was filed.”
(R. 420, at 2). The Government concludes that “the
appropriate remedy is to allow Back to file a delayed notice
of appeal.” (Id.).
April 30, 2018, Defendant filed a Reply to the
Government's Response, wherein he requested “that
the Court adopt the Government's position and allow
Petitioner to file a notice of direct appeal.” (R.
423). With respect to Defendant's second claim asserted
in his § 2255 Motion, asserting that the sentence
imposed was “procedurally and substantively
unreasonable, ” Defendant requested that the issue be
declared moot. (Id.). Finally, Defendant requests
that the Court appoint counsel with respect to his appeal and
“[i]instruct Petitioner as to the steps he must take to
have his notice of direct appeal filed in light of the
circumstances of his case.” (Id.).
contends that his Sixth Amendment right to the effective
assistance of counsel was violated because it is undisputed
that his counsel failed to ensure that a notice of appeal was
appropriately filed despite Defendant's specific
instructions to him to do so. Generally, to prevail on an
ineffective assistance of counsel claim, a petitioner must
show that (1) counsel's performance was constitutionally
deficient, and (2) counsel's deficient performance so
prejudiced the defense that, but for counsel's alleged
errors, the result of the proceedings would have been
different. Strickland v. Washington, 466 U.S. 668,
694 (1984). The two-part Strickland test applies to
a claim that counsel was ineffective for failing to file a
notice of appeal. See Roe v. Flores-Ortega, 528 U.S.
470, 476-77 (2000); Regalado v. United States, 334
F.3d 520, 524-25 (6th Cir. 2003).
well-established that where a defendant expressly instructs
his counsel to file a notice of appeal and counsel fails to
do so, counsel's conduct is objectively unreasonable
under the first prong of the Strickland test.
See Flores-Ortega, 528 U.S. at 476-77.
Defendant's appointed sentencing counsel, Billy G. Slone,
confirmed Defendant's statement that he specifically told
his counsel that he wanted to appeal the newly-imposed
sentence. (R. 420, at 2). The Government attached Attorney
Slone's Affidavit to its Response, where Slone attests
that “Mr. Back handed me a document containing several
pages and told me that this was his appeal and he wanted it
mailed to the Sixth Circuit Court of Appeals. I believe I
mailed the documents that same day.” (See R.
420-1). The Government notes that, “[h]owever, no
notice of appeal was filed.” (R. 420, at 2). Simply
placing Defendant's appeal in the mail does not satisfy
the requirement that defense counsel “file a notice of
appeal.” Defense counsel had a responsibility to ensure
that the document was appropriately and timely received by
the Sixth Circuit. His failure to do so constitutes
objectively unreasonable representation. See Hardaway v.
Robinson, 655 F.3d 445, 447 (6th Cir. 2011) (finding
counsel's performance deficient in failing to timely file
an appellate brief).
fact that Attorney Slone was appointed to represent Defendant
for purposes of the sentencing hearing does not affect the
reasonableness of Slone's actions. In
Flores-Ortega, trial counsel was a court-appointed
public defender. Flores-Ortega, 528 U.S. at 473. At
sentencing, the trial court informed the defendant of his
right to appeal and explained that if he could not afford
appellate counsel, then counsel would be appointed to
represent him on appeal. Id. at 474. Despite the
fact that trial counsel had not been appointed for the
appeal, the U.S. Supreme Court found that counsel had the
responsibility to file a notice of appeal if requested, or to
consult with the defendant about an appeal where the
circumstances imposed a duty on her to do so. Id. at
487; see also Richardson v. United States, 612
F.Supp.2d 709, 716 (N.D. W.Va. 2009) (finding that failure to
file notice of appeal upon being instructed to do so was per
se ineffective assistance of counsel irrespective of whether
counsel was retained for purposes of appeal). As the U.S.
Supreme Court has explained, “filing a notice of appeal
is a purely ministerial task.” Flores-Ortega,
528 U.S. at 474. Here, as in Flores-Ortega, counsel
is not excused from the task of filing a notice of appeal
because he may not have been specifically retained or
appointed for appellate purposes. During the December 19,
2017 sentencing hearing, the Court provided Defendant
information regarding his right to appeal; with respect to
Defendant's potential appeal of the newly-imposed
sentence, the then presiding District Judge stated that
“I know that Mr. Slone is going to keep you very well
advised[.]” (R. 409, at 22). Further, just as in
Flores-Ortega, the Court informed ...