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United States v. Thorson

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

January 13, 2020

UNITED STATES OF AMERICA PLAINTIFF / RESPONDENT
v.
COREY A. THORSON DEFENDANT/ MOVANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge

         This matter is before the Court on Movant Corey A. Thorson's amended motion to vacate his sentence under 28 U.S.C. § 2255. (Docket # 160.) The Court referred the matter to the undersigned Magistrate Judge “pursuant to 28 U.S.C. § 636(b)(1)(A) & (B) for rulings on all non-dispositive motions; for appropriate hearings, if necessary; and for findings of fact, conclusions of law, and recommendations on any dispositive matter.” (Docket # 91.)

         Movant's amended Section 2255 motion raises four claims of ineffective assistance of trial counsel. For the reasons below, an evidentiary hearing is required on claim four (only). Following the hearing, the undersigned will submit a report and recommendation to the District Judge concerning all claims.

         Claims one through three appear to be without meritless.

         The Court sentenced Movant at the lowest end of the applicable Guidelines range, which the Court determined was 51 months' imprisonment.[1] (Docket # 123 at 66.) Additionally, the Court ordered Movant to pay restitution in the amount of $109, 064.94 ($74, 809.78 for B.D.H. and $34, 255.16 for State Farm). (Id. at 42, 59, 60.) Movant's first claim is that counsel was ineffective because Movant “was misled by [counsel] as to his potential sentence.” (Docket # 160 at 3.) Specifically, counsel allegedly assured Movant that he would “receive no more than 39 months in prison” and “would owe no more than $75, 000 in restitution.” (Id.) The allegation apparently is refuted by the terms of the written plea agreement, [2]Movant's own testimony at his change of plea hearing, [3] and counsel's affidavit.[4] In any event, even if counsel did mislead Movant regarding his potential sentence, the mis-advice apparently was not prejudicial. This is because, assuming for the sake of argument that, if counsel had told Movant he would likely be sentenced to 51 months / $109.064.94, and further assuming that Movant would have insisted on proceeding to trial; it appears that Movant still would have been sentenced (following trial) to 51 months / $109, 064.94 or worse.[5]

         Movant's second claim is that counsel was ineffective because counsel “was not responsive to [Movant's] requests to take action to aid in mitigation” of his sentence. (Docket # 160 at 4.) The substance of the claim is that counsel was ineffective for not assisting Movant and certain family members to obtain discovery of varies items of evidence (information), which may or may not have resulted in a more favorable Guidelines calculation. Movant is unclear exactly what he thinks he could have discovered with counsel's assistance, and he neither alleges nor proves that this information would have changed the Court's Guidelines calculation or the sentence it imposed.

         Movant's third claim is that counsel was ineffective because counsel “did not address errors in the Presentence Report (‘PSR') brought to his attention by [Movant].” (Docket # 160 at 5.) The only specific error Movant alleges is that the PSR notes that Plaintiff has a “pending” misdemeanor charge of harassing communications, with a “pretrial conference scheduled for April 2, 2017.” (Id. at 6 referencing Docket # 44 at 16.) According to Movant, the “pending” charge was, in fact, dismissed on April 20, 2017. (Id.) Movant neither alleges nor proves that this “error” had any impact on the Court's Guidelines calculations or the sentence it imposed.[6]

         Claim Four

         Movant's fourth claim is that counsel was ineffective because counsel “did not act upon [Movant's] request to assist with his [direct] appeal in a timely fashion.” (Docket # 160 at 6.) Specifically, following imposition of sentence on May 19, 2017, and in the presence of Movant's wife, children, late grandfather, mother, and step-father, Movant allegedly spoke with counsel and “made clear his desire to appeal the Court's Judgment.” (Id.) In contrast to Movant's version of events, counsel's affidavit states that on May 19, 2017, Movant “did not (emphasis added) indicate a desire to appeal.” (Docket # 164-1 at Paragraph 4.)

         According to counsel, “[o]n May 26, 2017, after [Movant's] sentencing hearing, I sent [Movant] a letter … advising him of his appellate rights.” (Id.) A copy of the letter is at Docket # 164-3. The last sentence of the letter states: “Please complete the enclosed form indicating your decision regarding an appeal and return it to us in the enclosed self-addressed stamped envelope prior to JUNE 1, 2017 which is the next to the last day for filing a notice of appeal.” (Id.) According to Movant, the letter did not reach him at Grayson County Jail “until on or about June 4, 2019.” (Docket # 160 at 7.) According to counsel, even if the appeal time had passed, “we still would have been able to file a motion for an extension of time to appeal.” (Docket # 164-1 at Paragraph 4.) “However, even though [Movant] contacted this office after the sentencing, he never indicated a desire to appeal.” (Id.)

         In other words, Movant claims that counsel was ineffective because counsel did not file an appeal as directed on May 19, 2017, “or in the alternative, [counsel should have] made efforts to contact [Movant by letter] in a manner that would allow for the timely filing of a Notice of Appeal.” (Docket # 160 at 7.) Counsel's position is that he was not ineffective because Movant “did not indicate a desire to appeal” (Docket # 164-1 at Paragraph 4) on May 19, 2017 or during subsequent contact(s) with counsel's office and because Movant bears the consequence of Movant's false assumption that it was necessarily too late to file an appeal.

         An evidentiary hearing appears to be necessary on claim four.

         The United States' responses to Movant's fourth claim are somewhat inconsistent. In its response in opposition to Movant's amended Section 2255 motion, the United States argues that counsel “was not ineffective for failing to file a direct appeal because in fact an appeal on this basis had been waived by virtue of the Plea Agreement.” (Docket # 164 at 10 referencing Plea Agreement at Docket # 29, Paragraph 12.) According to Paragraph 12 of the Plea Agreement:

12. Defendant is aware of his right to appeal his conviction and that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Unless based on claims of ineffective assistance of counsel or prosecutorial misconduct, the Defendant knowingly and voluntarily waives the right (a) to directly appeal his conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. § 3742, and (b) to contest ...

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