USA v. Franks

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UNPUBLISHED OPINION FILED. [09-40135 Affirmed] Judge: RHB , Judge: CES , Judge: LHS. Mandate pull date is 11/29/2010; denying motion to strike document filed by Appellant Mr. Gary Don Franks [6570386-2]; denying as moot motion to not publish the opinion filed by Appellant Mr. Gary Don Franks [6548642-2]; denying motion to place case under seal filed by Appellant Mr. Gary Don Franks [6548642-3] [09-40135]

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USA v. Franks Doc. 0 Case: 09-40135 Document: 00511255700 Page: 1 Date Filed: 10/06/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 6, 2010 N o . 09-40135 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA P la in t iff - Appellee v. G A R Y DON FRANKS D e fe n d a n t - Appellant A p p e a l from the United States District Court for the Eastern District of Texas U S D C No. 4:05-CR-499 U S D C No. 4:03-CR-84 B e fo r e BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges. P E R CURIAM:* P r o c e e d in g in forma pauperis and pro se, and pursuant to three issues c e r t ifie d for appeal by our court, Gary Don Franks appeals the denial of his 28 U .S .C . 2255 motion, challenging his 2004 guilty-plea conviction. (Franks' m o t io n not to publish this opinion is DENIED as moot; his motion to strike the G o v e r n m e n t 's response to Franks' not-publish motion is DENIED.) Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 09-40135 Document: 00511255700 Page: 2 Date Filed: 10/06/2010 No. 09-40135 F o r the three certified issues, we hold: although the district court erred in ruling that the 2255 motion is both time-barred and barred by the appellatew a iv e r provision in Franks' plea agreement, it did not abuse its discretion by not c o n d u c t in g an evidentiary hearing for Franks' due-process claim. AFFIRMED. I. P u r s u a n t to a plea agreement, Franks pleaded guilty to possession with intent to distribute and dispense methamphetamine, in violation of 21 U.S.C. 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18 U .S .C . 922(g). Franks was sentenced, inter alia, to 101 months' imprisonment. Judgment was entered on 27 July 2004. The next day, Franks filed a timely pro se notice of appeal. His appeal was d is m is s e d for want of prosecution on 22 September 2004. O n 21 December 2005, Franks filed the 2255 motion at issue, claiming h is Sixth Amendment right to effective assistance of counsel was violated when: (1) the district court cut off funding for his privately-retained attorney; (2) his c o u n s e l failed to investigate the strength of the Government's case, thereby p r e c lu d in g him from deciding intelligently whether to plead guilty or proceed to t r ia l; and (3) his counsel failed to move to suppress evidence obtained in v io la t io n of his Fourth Amendment rights. In addition, Franks claimed his Fifth A m e n d m e n t right to due-process was violated when the district court denied him a p p o in tm e n t of counsel on direct appeal. The district court referred the matter to a magistrate judge for a report a n d recommendation. The magistrate judge recommended: Franks' 2255 m o t io n should be denied as time-barred; he should be denied equitable tolling b e c a u s e he failed to establish that an unconstitutional government action p r e v e n t e d him from filing a timely motion; he had waived his right to appeal; a n d , in the alternative, his claims were without merit. Additionally, the m a g is tr a t e judge recommended denial of a certificate of appealability (COA), 2 Case: 09-40135 Document: 00511255700 Page: 3 Date Filed: 10/06/2010 No. 09-40135 e v e n though Franks had not filed a request for a COA. Franks filed objections t o the report and recommendation. The district court adopted the magistrate judge's report and r e c o m m e n d a t io n and denied Franks' 2255 motion. The district court ruled: Franks' actual-innocence claim was without merit and could not excuse the s t a t u t e of limitations; Franks' 2255 motion was barred by the appellate-waiver p r o v is io n in his plea agreement; Franks' guilty plea waived all non-jurisdictional d e fe c t s except those set forth in Federal Rule of Criminal Procedure 11(a)(2); a n d , Franks failed to show that he either requested the appointment of appellate c o u n s e l or filed a 2255 motion on 29 July 2005 (Franks asserted that a request t o proceed in forma pauperis on that date invoked jurisdiction pursuant to 2255). The district court ruled, in the alternative, that the issues raised in F r a n k s ' 2555 motion lacked merit. II. O n 12 November 2009, our court denied the majority of Franks' COA r e q u e s ts (concerning the striking of his oversized objections to the magistrate ju d g e's report and recommendation, the denial of his motion for partial summary ju d g m e n t , and his claims of ineffective assistance of counsel) but granted a COA fo r : whether his 2255 motion was either time-barred or barred by the a p p e lla te -w a iv e r provision in his plea agreement; and whether the district court e r r e d in dismissing his due-process claim without conducting an evidentiary h e a r in g . See 28 U.S.C. 2253. A. A district court's factual findings are reviewed for clear error; it's legal c o n c lu s io n s , de novo. E.g., United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2 0 0 6 ). The district court erred in ruling on alternative bases that the 2255 m o t io n was barred. 3 Case: 09-40135 Document: 00511255700 Page: 4 Date Filed: 10/06/2010 No. 09-40135 1. R e g a r d in g the time bar, 2255 establishes the period for filing such m o t io n s . 28 U.S.C. 2255(f). The motion may be filed within one year from, in te r alia, the date the judgment of conviction became final. 2255(f)(1). J u d g m e n t for Franks' criminal case was entered on 27 July 2004; he filed a timely notice of appeal the next day. On 22 September 2004, his appeal was d is m is s e d for want of prosecution. Franks insists his conviction became final no earlier than 21 December 2 0 0 4 , 90 days after dismissal of his direct appeal. Because his 2255 motion w a s delivered to prison officials on 21 December 2005, Franks contends it was t i m e l y pursuant to 2255(f)(1). (Franks' 2255 motion was filed on 27 28 U.S.C. D e c e m b e r 2005; however, under the prison-mailbox rule, the motion was filed o n 21 December 2005, the day his motion was deposited into a legal mailbox w h e r e he was incarcerated. E.g., Spotville v. Cain, 149 F.3d 374, 376-78 (5th C ir . 1998).) The Government counters: because Franks did not raise on appeal any s u b s t a n t iv e issues regarding either his conviction or sentence, his petition for a writ of certiorari would have been limited to whether our court correctly d is m is s e d Franks' appeal for want of prosecution. Therefore, the Government u r g e s , the direct appeal for Franks' criminal conviction ended on 10 August 2 0 0 4 , ten days after the district court entered judgment, resulting in the lim it a t io n s period for filing the 2255 motion expiring on 10 August 2005. I n concluding that Franks' 2255 motion was time-barred, the district c o u r t relied upon United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). The district court reasoned that Franks' direct appeal became final on 10 August 2 0 0 4 because his appeal was dismissed for want of prosecution, and because any p e t it io n for certiorari would not have contested direct review of his conviction. 4 Case: 09-40135 Document: 00511255700 Page: 5 Date Filed: 10/06/2010 No. 09-40135 I n Plascencia, defendant filed a late pro se notice of appeal, which our c o u r t construed as a motion for an extension of time. Plascencia, 537 F.3d at 3 8 7 ; see FED. R. APP. P. 4(b)(4). Our court held: because defendant never filed a n effective notice of appeal, his judgment became final ten days after it was e n te r e d ; and any petition for writ of certiorari defendant could have filed after d is m is s a l of his direct appeal would not have encompassed direct review of his c o n v ic t io n . Plascencia, 537 F.3d at 389. "Instead, it would have concerned only [t h is court's] ruling that the district court did not abuse its discretion by d e c lin in g to grant [the defendant] an appeal." Id. On the other hand, when a federal defendant files a timely notice of a p p e a l, a judgment of conviction becomes final for purposes of 2255(f)(1) on the d a t e of the Supreme Court's denial of a petition for writ of certiorari. United S ta te s v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000). When such a petition has n o t been filed, the judgment becomes final upon the expiration of the 90-day p e r io d for filing such a petition. Clay v. United States, 537 U.S. 522, 532 (2003); U n ite d States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000). And, when a fe d e r a l defendant files a timely notice of appeal, and that appeal is dismissed for w a n t of prosecution, a conviction becomes final upon the expiration of the time fo r seeking certiorari, even when the prisoner has not filed such a petition. Gamble, 208 F.3d at 537. A 2255 motion is thereby deemed timely, so long as " [i]t was filed within a year after the ninety-day period for seeking certiorari r e v ie w of his conviction as finalized in this court". Id. Here, unlike defendant in Plascencia, Franks filed a timely notice of a p p e a l. See United States v. McWilliams, 308 F. App'x 806, 808 (5th Cir. 2009) ( n o t i n g Plascencia was not implicated because a timely notice of appeal). Because defendants are entitled to the benefit of the additional 90-day period e v e n when their direct appeal is dismissed for want of prosecution, Gamble, 208 5 Case: 09-40135 Document: 00511255700 Page: 6 Date Filed: 10/06/2010 No. 09-40135 F .3 d at 536-37, Franks' conviction became final on 21 December 2004, when the 9 0 -d a y period for filing a certiorari petition expired. See Clay, 537 U.S. at 532. 2. C o n c e r n i n g the bar by the appellate-waiver provision in Franks' plea a g r e e m e n t, that agreement was silent on his right to collaterally challenge his c o n v ic t io n under 2255. See United States v. McKinney, 406 F.3d 744, 746 (5th C ir . 2005) (waiver of defendant's right to statutory appeal must be explicit and u n a m b ig u o u s ); United States v. White, 307 F.3d 336, 338 (5th Cir. 2005) (plea a g r e e m e n t expressly included waiver of right to challenge sentence under 28 U . S .C . 2255). Along that line, the Government concedes that the district c o u r t's reading of Franks' waiver is too broad. We need not address this issue fu r t h e r . See United States v. Sadler, 2010 WL 3007909, at *1 (5th Cir. 30 July 2 0 1 0 ); see also United States v. Merrifield, 339 F. App'x 374, 375 (5th Cir. 2009) (h o ld in g guilty plea of Franks' co-defendant did not bar right to collaterally c h a lle n g e conviction and sentence under 2255). B. For the final issue certified, Franks maintains the district court erred by d e n y in g his due-process claim without conducting an evidentiary hearing. He c o n t e n d s : he made a sufficient showing to warrant an evidentiary hearing on his c la im that his Fifth Amendment right to due-process was violated by the district c o u r t's failure to grant him in forma pauperis status and appoint him counsel on d ir e c t appeal. The denial of a 2255 motion without an evidentiary hearing is reviewed fo r abuse of discretion. E.g., United States v. Cervantes, 132 F.3d 1106, 1110 (5 t h Cir. 1998) (citing United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1 9 9 2 )). "A trial court abuses its discretion when its ruling is based on an e r r o n e o u s view of the law or a clearly erroneous assessment of the evidence." 6 Case: 09-40135 Document: 00511255700 Page: 7 Date Filed: 10/06/2010 No. 09-40135 U n ite d States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting Bocanegra v . Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)). Rule 8 of the Rules Governing 2255 Proceedings states: "If the [ 2255] m o t io n is not dismissed, the judge must review the answer, any transcript and r e c o r d s of prior proceedings, and any materials submitted . . . to determine w h e t h e r an evidentiary hearing is warranted". See United States v. Cavitt, 550 F .3 d 430, 441-42 (5th Cir. 2008) (quoting Edwards, 442 F.3d at 264). Movant is entitled to an evidentiary hearing on an issue presented in his 2255 motion if h e can provide "independent indicia of the likely merit of [his] allegations, t y p ic a lly in the form of one or more affidavits from reliable third parties . . .". Cervantes, 132 F.3d at 1110 (emphasis added). "If, however, the [movant]'s s h o w in g is inconsistent with the bulk of [his] conduct or otherwise fails to meet [h is ] burden of proof in the light of other evidence in the record, an evidentiary h e a r in g is unnecessary." Id. (citing United States v. Smith, 844 F.2d 203, 208 (5 t h Cir. 1988)). Franks contends he is entitled to an evidentiary hearing because: his n o tic e of appeal, docketed on 28 July 2004, indicated sufficiently his request for a p p o in te d counsel during his appeal; and he submitted to the district court an a m e n d e d notice of appeal, which was mailed on 29 July 2004. In support, F r a n k s presents what appear to be three independent indicia supporting the m e r it s of his allegations: the self-serving statements contained in his 2255 m o t io n , which includes a copy of the alleged undocketed 29 July notice; and, the a ffid a v it s of prisoners (Franks' co-defendants) Ricky Joe James and Paul L. S c h lie v e . 1. F r a n k s contends his pro se notice of appeal, docketed 28 July 2004, p r e s e n t e d his appointed-counsel request: 7 Case: 09-40135 Document: 00511255700 Page: 8 Date Filed: 10/06/2010 No. 09-40135 C O M E S NOW, Gary Don Franks, without any attorney of r e c o r d and would file this Notice of Appeal, in the above s t y le d and numbered cause, by means of "pro-se" until such tim e as I can be appointed counsel or can afford to hire c o u n s el. WHEREFORE, Premises considered, the defendant r e s p e c t fu lly requests this Honorable court accept this, his N o t ic e of Appeal. (Emphasis added.) T h e district court found this notice of appeal lacked a request for a p p o in te d counsel. The notice was interpreted to include, at best, a suggestion t h a t Franks might request appointment if he could not afford to retain counsel. The district court did not abuse its discretion in ruling the notice did not r e q u e s t appointment of counsel. Besides the language contained in that notice, t h e district court's determination was supported in part by: Franks' failure to in q u ir e into the status of his claimed request for appointed counsel, either before o r after his direct appeal was dismissed for want of prosecution; Franks' having b e e n represented by retained counsel during the earlier district court p r o c e e d in g s ; and, Franks' letter to the district court on 8 July 2004, stating that h e was going to retain another attorney. Franks further contends the district court should have inquired into his fin a n c ia l circumstances at the time he filed his pro se notice of appeal, citing R o d r ig u e z v. United States, 395 U.S. 327 (1969). Rodriguez held, however, that, w h e n counsel fails to file a requested appeal, defendant is entitled to res e n te n c in g and an appeal without having to show likelihood of success. Id. at 3 2 9 -3 0 . Rodriguez did not impose a general duty on district courts to inquire in t o the pro se appellant's finances. 2. R e g a r d in g the claimed second notice of appeal on 28 July 2004, Franks a s s e r t s it included a request for leave to proceed in forma pauperis and for the 8 Case: 09-40135 Document: 00511255700 Page: 9 Date Filed: 10/06/2010 No. 09-40135 a p p o in tm e n t of counsel on his direct appeal. This notice was not docketed, and it apparently first came to the district court's attention as an attachment to F r a n k s ' 2255 motion, filed on 27 December 2005. To explain the discrepancy between the first and second notices of appeal, F r a n k s relies on the following assertions: the district court's claimed history of im p r o p e r filings; the Assistant United States Attorney's (AUSA) failure to deny " h a v in g received the copy of the Notice of Appeal that was served on her in her o ffic ia l capacity"; his mailing a copy of the notice of appeal to the district judge; a n d the affidavits of Schlieve and James. F r a n k s ' assertion that the district court has a history of improperly d o c k e t in g his filings is unavailing. His first example, that an application to p r o c e e d in forma pauperis was received by the district court on 29 July 2005, and w a s not docketed until 27 December 2005, is unhelpful: Franks' motion was not f i le d because it was premature until he submitted his 2255 motion. His s e c o n d example, that his "motion for Discovery of Documents Probative of the I n c a r c e r a t io n of Rodney Lewis Crowley" was received by the clerk on 28 August 2 0 0 6 but not filed, is belied by its certificate of service dated 13 September 2006. Additionally, his assertions that the court was aware of his second notice o f appeal because he mailed copies to the district judge and to the AUSA are u n s u b s ta n tia te d . See Cervantes, 132 F.3d at 1110 (finding petitioner's c o n c lu s io n a l allegations insufficient to merit request for evidentiary hearing). The Schlieve and James affidavits are unhelpful because they come from u n r e lia b le parties. See id. Schlieve's affidavit is insufficient because it shows h e was not an eyewitness to the events in question, thereby fatal to its value as in d e p e n d e n t indicia. See United States v. Merrill, 340 F. App'x 976, 978 (5th Cir. 2 0 0 9 ) (citing Cervantes, 132 F.3d at 1110). While James' affidavit contains an eyewitness account, it lacks requisite s p e c i f i c i t y . See Cervantes, 132 F.3d at 1110-11. It states that Franks filed a 9 Case: 09-40135 Document: 00511255700 Page: 10 Date Filed: 10/06/2010 No. 09-40135 n o tic e of appeal requesting appointed counsel in July 2004; however, it does not d iffe r e n t ia t e between Franks' above-described first and second notices of appeal. Franks' assertions are inconsistent with the bulk of his conduct otherwise: he failed to show he attempted to obtain the relevant prior mail logs or inquire a b o u t the status of his request for appointed counsel either before or after his a p p e a l was dismissed; he was able to retain counsel prior to entry of judgment; h e informed the district court that he was seeking another attorney; the volume o f his pro se filings during the period leading up to sentencing demonstrated F r a n k s ' proclivity to seek immediate action from the district court if a matter w a s pending; the record shows Franks was silent before the district court from 2 2 September 2004 (when his appeal was dismissed for want of prosecution) to 2 9 July 2005, when the district court apparently first received his application to p r o c e e d in forma pauperis. The district court's assessment of the evidence was not clearly erroneous; a c c o r d in g ly , it did not abuse its discretion in denying Franks an evidentiary h e a r in g on his due-process claim. Franks' claims are inconsistent with the bulk o f his conduct, and he offers no supporting specific facts. See Davis v. Butler, 825 F .2 d 892, 894 (5th Cir. 1987) (stating requirements for evidentiary hearing in c o n t e x t of a 2254 petition); United States v. Orozco-Ramirez, 211 F.3d 862, 864 n .4 (5th Cir. 2000) (noting that, because of their similarity, 2254 proceedings a r e viewed relevant to 2255 analysis). While Franks insists an evidentiary h e a r in g would allow him to find facts to support his allegations (e.g., the t e s t im o n y of other affiants, the mail log from Grayson County Jail), an e v id e n t i a r y hearing is not a "fishing expedition" for him to find support to v a lid a t e his allegations. Edwards, 442 F.3d at 268 n.10 (5th Cir. 2006). III. T h e r e fo r e , in the light of the district court's alternative ruling on the m e r it s , the judgment is AFFIRMED. 10

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