Hutton v. United States of America
MEMORANDUM OF OPINION AND ORDER- Petitioner Keenan L. Hutton's § 2255 motion is DENIED insofar as it relates to her claim that her due process rights were violated because she did not enter into her guilty plea knowingly and voluntarily; Hutton's claim of ineffective assistance of counsel as it relates to her direct appeal is RESERVED for an evidentiary hearing, date, time and place to be set by separate order. Signed by Judge L Scott Coogler on 10/6/17. (MRR, )
2017 Oct-06 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KEENAN L. HUTTON,
UNITED STATES OF
MEMORANDUM OF OPINION AND ORDER
This is a motion to vacate, set aside, or correct a sentence pursuant to 28
U.S.C. § 2255, filed by petitioner Keenan L. Hutton (“Hutton”). (Doc. 1.) Hutton
claims that her guilty plea was not knowingly and voluntarily made and that her
defense counsel was ineffective for failing to file a direct appeal after she asked him
to. The United States has responded in opposition to Hutton’s § 2255 motion but
acknowledges that a limited evidentiary hearing is warranted on Hutton’s
ineffective assistance of counsel claim as it relates to the direct appeal. (Doc. 5.)
For the reasons set forth below, the § 2255 motion is due to be denied and
dismissed as to Hutton’s involuntary guilty plea claim, and her ineffective
assistance of counsel claim is due to be reserved for an evidentiary hearing.
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On March 26, 2015, Hutton was indicted by a federal grand jury on one
count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
On May 26, 2015, Hutton pled guilty pursuant to a plea agreement (“the
Plea Agreement”). As part of the Plea Agreement, Hutton waived her appellate
rights subject to some exceptions, one of which being her right to appeal on the
basis of ineffective assistance of counsel. Hutton’s defense counsel, James Gibson
of the Federal Public Defender’s Office, filed a signed Guilty Plea Advice of Rights
Certification, and pursuant to Rule 11 of the Federal Rules of Criminal Procedure,
the Court addressed Hutton on the record regarding the consequences of her plea
and whether it was being knowingly and voluntarily made.
On November 17, 2016, the Court sentenced Hutton to a below-Sentencing
Guidelines sentence of sixty (60) months’ custody to run concurrent with two state
cases and thirty-six (36) months’ supervised release. Hutton agreed to the
forfeiture of the involved weapon. Judgment was entered on November 18, 2015.
Hutton did not appeal. This is her first motion to vacate under 28 U.S.C. § 2255,
and she filed it on April 27, 2016.
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In a § 2255 proceeding if a “petitioner alleges facts that, if true, would entitle
[her] to relief, then the district court should order an evidentiary hearing and rule
on the merits of [her] claim.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.
2002) (internal quotation marks and citations omitted). However, a district court
need not hold an evidentiary hearing if the petitioner’s allegations are “patently
frivolous,” “based upon unsupported generalizations,” or “affirmatively
contradicted by the record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.
1989). The record in this case includes the affidavit filed by Hutton’s criminal
defense counsel, which the United States attached to its response in opposition to
Hutton’s motion. (Doc. 5-1.) See Rule 8(a), Rules Governing 2255 Proceedings.
A Limited Evidentiary Hearing is Warranted on Hutton’s Claim
that Defense Counsel was Ineffective in Relation to a Direct
Hutton asserts that her defense counsel’s performance was constitutionally
deficient because he failed to file a notice of appeal when she requested one after
sentencing. However, Assistant Federal Defender James Gibson patently denies
Petitioner’s assertion. (Gibson Affidavit, Doc. 5-1.) Mr. Gibson swears that he
“timely advised Ms. Hutton of her right to appeal,” and “Ms. Hutton did not
request that [he] file an appeal for her.” (Id.)
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Hutton waived certain rights when she entered into her guilty plea, but she
did not waive the right to raise a claim of ineffective assistance of counsel on appeal
or on collateral attack. Moreover, claims of ineffective assistance of counsel may be
raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500,
For a convicted defendant’s claim of ineffective assistance of counsel to
warrant post-conviction relief, two components must be present—deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
demonstrate deficient performance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness. Id. at 688. To
demonstrate prejudice, the defendant must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different. Id. at 694. The court need not “address both
components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697.
In determining whether an attorney’s performance fell below the objective
standard of reasonableness, the court is highly deferential to counsel’s decisions
and must keep in mind that “a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
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reconstruct the circumstances of counsel’s challenged performance, and to
evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689. The court must also indulge a strong presumption that counsel’s
performance falls within the “wide range of reasonable professional assistance.” Id.
When seeking to overcome this presumption, a movant cannot rely on bare
accusations and complaints, but instead “must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional
judgment.” Id. at 690.
A criminal defense lawyer is not under a per se constitutional obligation to
consult with his or her client about an appeal. Otero v. United States, 499 F.3d 1267,
1270 (11th Cir. 2007). The Supreme Court has rejected such a bright-line rule as
“inconsistent with Strickland’s holding that the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.”
Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). Rather than adopt an inflexible rule,
the Court has found that there is only a “constitutionally imposed duty to consult
with the defendant about an appeal when there is a reason to think either (1) that a
rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Id. at 480. In
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determining whether there was a duty to consult, courts should consider (1)
whether the conviction follows a guilty plea, (2) whether the defendant received
the sentence he or she bargained for, and (3) whether the plea agreement expressly
waived some or all appeal rights. Id.
However, the Eleventh Circuit has held “that a lawyer who disregards
instructions from his client to appeal has acted ‘in a manner that is professionally
unreasonable.’” Gomez-Diaz v. United States, 433 F.3d 788, 789 (11th Cir. 2005)
(quoting Flores-Ortega, 528 U.S. at 477). In that situation, the petitioner does not
have to establish prejudice beyond showing that but for counsel’s deficient
conduct, she would have appealed. Id. at 792-93; Flores-Ortega, 528 U.S. at 486,
(“[I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that
his hypothetical appeal might have had merit . . . . Rather, we require the defendant
to demonstrate that, but for counsel’s deficient conduct, he would have
appealed.”). Further, the appeal waiver does not establish an absence of prejudice
for ineffective assistance purposes. See Gomez-Diaz, 433 F.3d at 793 (favorably
citing United States v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005) (holding
that although the defendant’s “appellate rights have been significantly limited by
his waiver, . . . the waiver does not foreclose all appellate review of his sentence. If
[the defendant] actually asked counsel to perfect an appeal, and counsel ignored the
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request, he will be entitled to a delayed appeal. This is true regardless of whether,
from the limited perspective of collateral review, it appears that the appeal will not
have any merit.”)).
On the other hand, guilty pleas tend to indicate that the defendant is
“interested in seeking an end to the judicial proceedings.” Otero, 499 F.3d at 1270.
In Otero, the defendant pled guilty via a plea agreement that included a broad
appeal waiver. 499 F.3d at 1270. The defendant then filed a pro se motion pursuant
to 28 U.S.C. § 2255 alleging his counsel was ineffective for failing to file a notice of
appeal after the defendant insisted he do so. Id. at 1269. Defense counsel denied the
defendant’s assertions. Id. The court held an evidentiary hearing and found defense
counsel’s testimony to be credible and the defendant’s testimony not to be
credible. Id. The court assumed, however, for the purposes of argument that
defense counsel failed to consult with the defendant about an appeal. Id. at 1270.
The court found such a failure not to be ineffective because the defendant’s
conviction was the result of a guilty plea; the sentence he received was within the
range of what his lawyer had advised him was possible; his plea agreement included
an appeal waiver with limited exceptions; he had no argument that any of the
exceptions applied which meant that any appeal taken by him would have been
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frivolous and would have been an appeal no rational defendant would have taken.
Id. at 1270-71.
The instant case is factually analogous to Otero. Here, Hutton pled guilty
pursuant to a plea agreement with a broad appeal waiver. Hutton has no plausible
arguments that any of the exceptions to the waiver apply, and thus any appeal she
may have filed would have been frivolous. Like the defendant in Otero, Hutton
received a sentence that was within the range of what her lawyer would have
advised her was possible. In fact, unlike the defendant in Otero, Hutton received a
sentence below the Sentencing Guidelines range and below the sentence the
United States was obligated to recommend pursuant to the Plea Agreement.
Therefore, there was no reason for defense counsel to believe that Hutton would
want to appeal. Thus, the only issue is whether Hutton reasonably demonstrated to
her counsel that she was interested in appealing.
Defense counsel, Mr. Gibson, swears that in his last in-person conversation
with Hutton on the issue of appeal, Hutton advised that she did not want him to file
an appeal. (Gibson Affidavit, Doc. 5-1.) However, because Hutton says that she
made such a request, this claim cannot be resolved on the existing record. The
Court will hold a limited evidentiary hearing for the purpose of determining
whether Hutton asked Mr. Gibson to file an appeal.
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The Existing Record Indicates that Hutton’s Involuntary Guilty
Plea Claim Lacks Merit
Hutton maintains that her Fifth Amendment Due Process rights were
violated because “[c]onviction obtained by plea of guilty which was unlawfully
induced or not made voluntarily or with the understanding of the nature of the
charge and the consequences of the plea.” Hutton offers no additional information
in support of this generic statement, including no specific information about how
her plea was unlawfully induced, why it was not voluntarily made, or what she was
not informed about or did not understand. Contrary to Hutton’s assertions, the
record makes clear that Hutton was extensively informed about the nature of the
charges and the consequences of her plea.
First, Hutton signed and initialed every page of a fifteen-page written plea
agreement which clearly set out (1) the charge and its maximum penalty, (2) the
sentence the Government would recommend, (3) Hutton’s waiver of certain appeal
and post-conviction rights, (4) the advisory nature of the Sentencing Guidelines,
and (5) other matters. The Plea Agreement also contained the following provisions:
XIV. DEFENDANT’S UNDERSTANDING
I have read and understand the provisions of this agreement consisting
of fifteen pages. I have discussed the case and my constitutional and
other rights with my lawyer. I am satisfied with my lawyer’s
representation in this case. By pleading guilty, I understand that I will
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be waiving and giving up my right to continue to plead not guilty, to a
trial by jury, to the assistance of counsel at that trial, to confront,
cross-examine, or compel the attendance of witnesses, to present
evidence in my behalf, to maintain my privilege against selfincrimination, and to the presumption of innocence. I agree to enter
my plea as indicated above on the terms and conditions set forth
NO OTHER PROMISES OR REPRESENTATIONS HAVE
BEEN MADE TO ME BY THE PROSECUTOR, OR BY
ANYONE ELSE, NOR HAVE ANY THREATS BEEN MADE
OR FORCE USED TO INDUCE ME TO PLEAD GUILTY.
I have personally and voluntarily placed my initials on every page of
this Agreement and have signed the signature line below to indicate
that I have read, understood, and approved all of the provisions of this
Agreement, both individually and as a total binding agreement.
XV. COUNSEL’S ACKNOWLEDGMENT
I have discussed this case with my client in detail and have advised my
client of all of my client’s rights and all possible defenses. My client
has conveyed to me that my client understands this Agreement and
consents to all its terms. I believe the plea and disposition set forth
herein are appropriate under the facts of this case and are in accord
with my best judgment. I concur in the entry of the plea on the terms
and conditions set forth herein.
(Doc. 14 in United States v. Hutton, 2:15-cr-00072-LSC-HGD) (sealed)).
Second, Hutton signed and initialed a six-page Guilty Plea and Advice of
Rights Certification. (Doc. 15 in United States v. Hutton, 2:15-cr-00072-LSCHGD.) This Certification set out Hutton’s rights in detail and includes, among
others, the following provisions:
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5. The court must be satisfied that the defendant completely
understands the proceedings and that he/she is pleading guilty freely,
voluntarily and of his own free will. Specifically, the defendant must
understand that he/she has an affirmative duty to inform the court if,
at any time during the plea proceeding, he/she does not understand
anything that is said or done. The court will, before proceeding
further, undertake all reasonable steps, including a reasonable recess
to permit the defendant to further consult with counsel, to make
certain that he/she does understand.
7. The court must be satisfied that the defendant has not been coerced
by any threats or induced by any improper promise (or made indirectly
through those close to and capable of influencing the defendant) to
enter the guilty plea, but that the plea is free, uncoerced and voluntary
choice of the defendant.
(Id.) The Certification also includes an acknowledgement by Hutton that her
attorney “has explained to [her] in detail, each of the matters set out above” and as
to any matters she does not fully understand, “[she] will specifically call to the
court’s attention during the plea proceeding in open court.” (Id.)
Third, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the
Court addressed Hutton on the record and inquired about the voluntariness of her
plea and her understanding of its nature and consequences, and made a finding that
her plea was knowingly and voluntarily entered. (See Transcript of Guilty Plea
Proceeding, Doc. 39 in United States v. Hutton, 2:15-cr-00072-LSC-HGD.)
Guilty pleas that are induced by promises or threats or those which are not
entered into knowingly subject to collateral attack on the basis of due process.
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WinthropRedin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014); United States
v. Brown, 117 F.3d 471, 476 (11th Cir. 1997).
At the same time, plea bargaining retains its benefits of certainty and
efficiency only if dispositions by guilty plea are accorded a great
measure of finality. While § 2255 exists to safeguard a person’s
freedom from detention in violation of constitutional guarantees, the
Eleventh Circuit has observed that more often than not a prisoner has
everything to gain and nothing to lose from filing a collateral attack
upon [her] guilty plea. As a result, the representations of the
defendant, [her] lawyer, and the prosecutor at a plea hearing, as well
as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. The
subsequent presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are contentions that, in
the face of the record, are wholly incredible.
Winthrop-Redin, 767 F.3d at 2016 (internal quotations and citations omitted).
Here, Hutton has presented nothing more than conclusory allegations that
her due process rights were violated. She has fallen far short of the standard for
“specific and detailed factual assertions.” Further, Hutton’s conclusory allegations
fly in the face of record, including Hutton and her counsel’s own representations at
the plea hearing and the findings of the Court. Hutton’s second ground for relief
does not necessitate an evidentiary hearing and is due to be denied.
For the foregoing reasons, Hutton’s § 2255 motion is hereby DENIED
insofar as it relates to her claim that her due process rights were violated because
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she did not enter into her guilty plea knowingly and voluntarily. Hutton’s claim of
ineffective assistance of counsel as it relates to her direct appeal is hereby
RESERVED for an evidentiary hearing, date, time and place to be set by separate
DONE and ORDERED on October 6, 2017.
L. Scott Coogler
United States District Judge
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