US v. Michael Speed

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 1:10-cr-00700-JFM-1,1:14-cv-00583-JFM. Copies to all parties and the district court. [999734103]. Mailed to: Appellant. [14-7298, 15-7375]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7298

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPEED,
Defendant - Appellant.

No. 15-7375

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPEED,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:10-cr-00700-JFM-1; 1:14-cv-00583-JFM)

Submitted:

November 19, 2015

Decided:

January 12, 2016

Before NIEMEYER, KING, and KEENAN, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

Michael Speed, Appellant Pro Se.
Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In these consolidated appeals, Michael Speed challenges the
district

court’s

orders

denying

postconviction

proceeding.

challenges

district

the

In

court’s

§ 2255 (2012) motion.

relief

Appeal
order

in

No.

his
14-7298,

denying

his

28

federal
Speed
U.S.C.

We initially remanded the case to the

district court with instructions that it rule on what should
have

been

dispose

of

construed
Speed’s

counsel claims. 1

as

a

two

Fed.

R.

remaining

Civ.

P.

59(e)

ineffective

motion

assistance

and
of

On remand, the district court denied Speed’s

Rule 59(e) motion, and the case has been returned to this court.
Speed’s appeal of the district court’s order denying his Rule
59(e) motion was docketed as Appeal No. 15-7375.
On remand, the district court correctly docketed Speed’s
Rule

59(e)

motion

and

directed

1

the

Government

to

respond

to

In his § 2255 motion, Speed asserted a claim that counsel
provided ineffective assistance in failing to advise him of the
possibility of pleading guilty without a plea agreement to the
drug charge only, and failing to advise him of a potentially
meritorious defense to the firearm charge.
In his informal
briefs in these appeals, Speed does not assert error in the
district court’s rejection of these claims, and they are
therefore not preserved for review in this court.
4th Cir. R.
34(b) (“The Court will limit its review to the issues raised in
the informal brief.”).
In his amended § 2255 motion, Speed
claimed that counsel was ineffective in failing to timely file a
notice of appeal of his criminal judgment despite being asked to
do so (“appeal claim”), and in failing to investigate and
develop a mental competency argument as a mitigating factor for
sentencing. Those claims are preserved for appellate review.

3

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Speed’s

two

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remaining

habeas

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claims.

In

its

response,

the

Government opposed both of Speed’s remaining claims on their
merits,

but

conceded

evidentiary hearing.

that

the

appeal

claim

necessitated

an

Thus, the Government requested that an

evidentiary hearing be scheduled on this claim and that Speed be
appointed counsel for the hearing.
Rather than schedule an evidentiary hearing on the appeal
claim,

however,

the

district

remaining § 2255 claims.

court

merely

denied

Speed’s

With regard to Speed’s appeal claim,

the district court stated:
I will assume (if for no other reason than that the
plea letter contained a paragraph waiving defendant’s
right to appeal) that defendant was not advised by his
counsel of the right to appeal.
This assumption may
or may not be correct. However, making the assumption
will save the government the cost of returning
defendant to Baltimore and will save significant time
and expense of the parties.
An appeal may not be taken to this court from the final
order in a § 2255 proceeding unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

constitutional

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

right.”

28

28

showing
U.S.C.

of

the

denial

§ 2253(c)(2).

of

When

a
the

district court denies relief on the merits, a prisoner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district court’s assessment of the constitutional

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claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right.

Slack,

529 U.S. at 484-85.
Under this standard, the movant must show that “reasonable
jurists could debate whether (or, for that matter, agree that)
the [motion] should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement
to

proceed

quotation

further.”
marks

appealability]

Miller-El,

537

U.S.

at

omitted).

Thus,

“[t]he

determination

under

§ 2253(c)

336

(internal

[certificate
requires

of
an

overview of the claims in the habeas petition and a general
assessment of their merits.”
must

“look

to

the

Id.

District

In this regard, this court

Court’s

application

of

[the

Antiterrorism and Effective Death Penalty Act of 1996] to [the
movant’s] constitutional claims and ask whether that resolution
was debatable amongst jurists of reason.”

Id.

“This threshold

inquiry does not require full consideration of the factual or
legal bases adduced in support of the claims.
statute forbids it.”

Id.

5

In fact, the

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We conclude that reasonable jurists could debate whether
Speed’s appeal claim should have been resolved in a different
manner

and

that

the

issue

presented

encouragement to proceed further.
district

court

asserted

that

misconstrued
counsel

is

to

deserve

First, it appears that the

Speed’s

failed

adequate

to

claim.

timely

Although

appeal

the

Speed

criminal

judgment against him despite being asked to do so, the district
court

characterized

the

claim

as

complaining

of

failure to advise Speed of his right to appeal.

counsel’s

These claims

are not the same.
And

although

the

district

court

suggests

that

counsel

committed no error because Speed’s plea agreement contained an
appellate

waiver,

this

is

incorrect.

The

Sixth

Amendment

obligates counsel to file a notice of appeal when a defendant
requests him to do so.
(4th Cir. 2007).

Strong v. Johnson, 495 F.3d 134, 138

Even a waiver of appellate rights in the

defendant’s plea agreement does not absolve counsel of his duty
to file a notice of appeal.

United States v. Poindexter, 492

F.3d 263, 268-71 (4th Cir. 2007).

Thus, counsel’s failure to

file a notice of appeal following a defendant’s unequivocal and
timely
and

request

prejudices

constitutes
the

appellate proceeding.

objectively

defendant

because

Id. at 268-69.

6

deficient
it

deprives

performance,
him

of

an

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Moreover, we find that the district court’s language makes
it unclear whether the district court meant to grant or deny
Speed’s appeal claim.

First, although the district court’s most

recent order denies Speed’s § 2255 claims, the district court
appeared to assume counsel’s ineffectiveness so as to save the
parties the cost and time of an evidentiary hearing.

If the

district court meant to grant Speed’s appeal claim, it failed to
grant Speed appropriate relief - namely, reentering the criminal
judgment against Speed to afford him an opportunity to file a
timely criminal appeal.
(4th

Cir.

1993).

A

United States v. Peak, 992 F.2d 39, 42
review

of

the

district

court’s

docket

confirms that the criminal judgment against Speed has not been
reentered so as to commence Speed’s criminal appeal period anew.
On the other hand, if the district court truly meant to
deny Speed’s appeal claim, it appears (based on the record as it
currently

exists)

that

the

district

conducted an evidentiary hearing.

court

should

have

first

See Raines v. United States,

423 F.2d 526, 529 (4th Cir. 1970) (“Unless it is clear from the
pleadings

and

the

files

and

records

that

the

prisoner

is

entitled to no relief, [§ 2255] makes a hearing mandatory.”);
cf. Poindexter, 492 F.3d at 267 (“Because the district court did
not

hold

an

evidentiary

hearing

to

resolve

the

question

of

whether [movant] unequivocally instructed his attorney to file a
timely notice of appeal, we must assume that [movant] did so
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instruct

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for

purposes

of

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resolving

his

appeal.”).

No

evidentiary hearing was conducted by the district court.
In sum, we conclude that reasonable jurists would disagree
whether the district court correctly denied relief on Speed’s
appeal claim.
intended
counsel

Moreover, and regardless of the district court’s

disposition
claims,

necessary

on

Speed’s

additional

before

this

ineffective

action

court

may

by

the

assistance

district

consider

Speed’s

court

of
is

appeal.

Accordingly, we grant a certificate of appealability on Speed’s
appeal claim.

We vacate the district court’s August 12, 2015

order and remand to the district court with instructions that it
clarify its ruling pertaining to the appeal claim and conduct
any further proceedings it deems appropriate. 2

In light of the

complicated procedural history of this case, the district court
should issue an opinion explaining its resolution of both of
Speed’s

remaining

claims:

that

counsel

was

ineffective

in

failing to timely file a notice of appeal and in failing to
investigate and develop a mental health argument for mitigation
at sentencing.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

2

We, of course, express no opinion as to the merits of this

claim.

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before

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this

court

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and

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argument

would

not

aid

the

decisional

process.
VACATED AND REMANDED

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