Grice v. United States of America
Filing
22
ORDER denying 1 Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence; denying 9 Motion to Appoint Counsel; granting 12 Motion to Expedite insofar as Petitioner seeks a resolution of his Motion to Vacate. The Clerk shall enter judgment in favor of the United States and against Petitioner, and close the file. Signed by Judge Timothy J. Corrigan on 8/21/2019. (JHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LEONARD D. GRICE,
Petitioner,
vs.
Case No.
3:16-cv-1252-J-32JBT
3:15-cr-33-J-32JBT
UNITED STATES OF AMERICA,
Respondent.
ORDER
This case is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1)1 and Supporting Memorandum
(Civ. Doc. 2), as well as his Motion to Appoint Counsel (Civ. Doc. 9) and Motion to
Expedite (Civ. Doc. 12). In brief, Petitioner claims he was incorrectly sentenced as a
career offender under the United States Sentencing Guidelines and that counsel failed
to file a requested appeal. The United States has responded. (Civ. Doc. 5, Response).
On March 4, 2019, the Court directed Petitioner’s former public defenders and the
prosecutor to expand the record with affidavits and relevant records concerning
Petitioner’s claim that trial counsel did not file a requested appeal. (Civ. Doc. 13, Order
to Expand the Record). Each attorney has responded to the Order (Civ. Docs. 15, 16,
Citations to the record in the underlying criminal case, United States vs.
Leonard Grice, No. 3:15-cr-33-J-32JBT, will be denoted “Crim. Doc. __.” Citations to
the record in the civil § 2255 case, No. 3:16-cv-1252-J-32JBT, will be denoted “Civ.
Doc. __.”
1
1
17), and Petitioner has responded to their affidavits (Civ. Docs. 18, 21). Thus, the
matter is ripe for a decision.
Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court
has determined that an evidentiary hearing is not necessary to decide the motion. See
Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on
a § 2255 motion is not required when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently frivolous, or if in assuming that
the facts he alleges are true, he still would not be entitled to any relief). For the reasons
set forth below, Petitioner’s § 2255 Motion is due to be denied.
I.
Background
On March 11, 2015, a federal grand jury charged Petitioner with one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Crim.
Doc. 1, Indictment). Three months later, Petitioner pled guilty to the charge pursuant
to a written Plea Agreement. (Crim. Doc. 18, Plea Agreement); (see also Crim. Doc. 40,
Plea Transcript). In doing so, Petitioner admitted that he knowingly possessed a
firearm after having been convicted of six felonies. (Crim. Doc. 18 at 19-20; Crim. Doc.
40 at 20-23). Petitioner also agreed to waive the right to appeal his sentence. (Crim.
Doc. 18 at 14; Crim. Doc. 40 at 17-18). When questioned under oath about the appeal
waiver, Petitioner acknowledged that he understood the waiver and accepted it “freely
and voluntarily.” (Crim. Doc. 40 at 18). The Magistrate Judge who presided over the
change-of-plea hearing recommended that the Court accept the guilty plea as
“knowledgeable and voluntary” (Crim. Doc. 19), and the Court did so (Crim. Doc. 21).
2
According to the Presentence Investigation Report (PSR), Petitioner’s base
offense level was 24 under U.S.S.G. § 2K2.1(a)(2) because he committed the offense
after having been convicted of two controlled substance offenses: (1) a 2005 conviction
in federal court for possession of crack cocaine with intent to distribute, and (2) a 2000
conviction in a Florida court for the sale of cocaine. PSR at ¶ 16; see also id. at ¶¶ 39,
51. Petitioner received a three-level reduction under §§ 3E1.1(a) and (b) for acceptance
of responsibility, resulting in a total offense level of 21. Id. at ¶¶ 23-25. Petitioner’s
Criminal History Category was VI based on having 15 criminal history points. Id. at
¶¶ 52-54. As a result, Petitioner’s advisory sentencing range under the Guidelines was
between 77 months and 96 months in prison. Id. at ¶ 114.
At the sentencing hearing, the Court adopted the PSR’s Guidelines calculation
without objection from either party. (Crim. Doc. 41, Sentencing Transcript at 6). Both
the United States and Petitioner’s counsel asked for a sentence at the low end of the
Guidelines range, or 77 months. (Id. at 9, 14). All sides agreed that Petitioner had a
serious criminal record; indeed, the Court observed that Petitioner had 25 convictions.
(Id. at 18). However, Petitioner had attempted to assist law enforcement authorities
by coming forward with information about other criminal activities. (See id. at 6-10,
11-12). Thus, in the end, the Court adopted the parties’ recommendation and
sentenced Petitioner to a term of 77 months in prison, followed by a three-year term
of supervised release. (Id. at 20-21). Neither party objected to the sentence. (Id. at 22).
The Court entered judgment on December 18, 2015. (Crim. Doc. 30, Judgment).
Petitioner did not file a notice of appeal thereafter. Petitioner timely filed the § 2255
3
Motion roughly nine months later.
II.
Arguments
Petitioner raises four grounds in the § 2255 Motion, but they can be reduced to
two issues. First, in Grounds One through Three, Petitioner argues that the Court
erred by enhancing his Sentencing Guidelines range under the career offender
provision. (Civ. Doc. 1 at 4-6; see also Civ. Doc. 2). Petitioner contends he is “actually
innocent” of the career offender enhancement because he does not have two prior
convictions that qualify as a “controlled substance offense.” Petitioner also argues that
the Court erred by “look[ing] beyond the authorized documents … to increase the
Petitioner’s Sentencing Guidelines,” and that increasing his Guidelines range violated
his rights under the Sixth Amendment. (Civ. Doc. 1 at 5-6).
Contrary to these allegations, Petitioner was not in fact sentenced as a career
offender. Rather, his base offense level was set at 24 under U.S.S.G. § 2K2.1(a)(2)
because he had two prior convictions for a controlled substance offense. But § 2K2.1
defines the term “controlled substance offense” by reference to the career offender
provision, § 4B1.2(b). U.S.S.G. § 2K2.1, Application Note 1. Thus, while Petitioner was
not sentenced under the career offender guideline, the Court construes Petitioner as
challenging the determination of his base offense level under § 2K2.1(a)(2).
Second, in Ground Four, Petitioner claims that counsel gave ineffective
assistance by failing to file a notice of appeal “after being directed to do so by the
Petitioner.” (Civ. Doc. 1 at 8). Petitioner argues that an attorney “is per se ineffective
when he fails to file a direct appeal after being directed to do so by his client.” (Id.).
4
In its Response, the United States argues that Petitioner’s claims are barred by
a collateral review waiver in the Plea Agreement. (Civ. Doc. 5 at 3-7). 2 The United
States also contends that Petitioner’s claims lack merit. (Id. at 7-14). Specifically, as
to Petitioner’s claim that counsel was ineffective for not filing a notice of appeal, the
United States argues that the record contradicts the claim because Petitioner waived
the right to appeal his sentence, Petitioner received a sentence at the low end of the
Guidelines range, and Petitioner waited nearly nine months to file the § 2255 Motion,
despite the Court advising him that he would waive the right to appeal if he did not
file a notice of appeal within 14 days of sentencing. (Id. at 11-14).
III.
Discussion
Under Title 28, United States Code, Section 2255, a person in federal custody
may move to vacate, set aside, or correct his sentence. Section 2255 permits such
collateral challenges on four specific grounds: (1) the imposed sentence was in violation
of the Constitution or laws of the United States; (2) the court did not have jurisdiction
to impose the sentence; (3) the imposed sentence exceeded the maximum authorized
by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C
§2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error
that are so fundamental as to cause a complete miscarriage of justice will warrant
relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86
The sentence-appeal waiver in Petitioner’s Plea Agreement does not clearly bar
Petitioner from collaterally attacking his conviction and sentence. (See Crim. Doc. 18
at 14). Rather, the appeal waiver appears to be a waiver of the right to directly appeal
the sentence. Accordingly, the Court declines to find that the Plea Agreement includes
a collateral review waiver that bars Petitioner’s claims.
2
5
(1979). A petitioner’s challenge to his sentence based on a Sixth Amendment claim of
ineffective assistance of counsel is normally considered in a collateral attack. United
States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).
To succeed on a claim of ineffective assistance of counsel, a petitioner must show
both (1) that counsel’s performance was deficient, and (2) that as a result of counsel’s
deficient performance, the petitioner suffered prejudice. Strickland v. Washington,
466 U.S. 668, 687 (1984). In determining whether counsel performed deficiently, the
Court adheres to the standard of reasonably effective assistance. Weeks v. Jones, 26
F.3d 1030, 1036 (11th Cir. 1994). The petitioner must show, in light of all the
circumstances, that counsel’s performance fell outside the “wide range of
professionally competent assistance.” Id. To show that counsel’s deficient performance
prejudiced the defendant, the petitioner must show that there is a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been
different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). A “reasonable probability”
is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S.
at 694. In determining whether a petitioner has met the two prongs of deficient
performance and prejudice, the Court considers the totality of the evidence. Id. at 695.
However, because both prongs are necessary, “there is no reason for a court… to
approach the inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also
Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss
the performance deficiency component of [petitioner’s] ineffective assistance claim
6
because failure to satisfy the prejudice component is dispositive.”).
A. Grounds One through Three: Whether the Court erroneously
increased Petitioner’s Guidelines range
Petitioner claims in Grounds One through Three that the Court erred in
sentencing him as a career offender under the Guidelines. Although Petitioner was
not sentenced under the career offender provision, the Court construes the claim as
challenging the enhancement of his base offense level under U.S.S.G. § 2K2.1(a)(2).
Petitioner argues that he does not have two prior convictions that qualify as a
“controlled substance offense” and that the Court erred by “look[ing] beyond the
authorized documents of a prior state conviction.” (Civ. Doc. 1 at 5). Petitioner also
claims that increasing his Guidelines range violated his rights under the Sixth
Amendment. (Civ. Doc. 1 at 6).
Grounds One through Three do not warrant relief because Guidelines errors are
not cognizable on collateral review. “Section 2255 does not provide a remedy for every
alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132,
1138 (11th Cir. 2014) (en banc). When a prisoner claims that his “sentence was
imposed in violation of the Constitution or laws of the United States ... or is otherwise
subject to collateral attack,” 28 U.S.C. § 2255(a), a court lacks authority to grant relief
“unless the claimed error constitute[s] ‘a fundamental defect which inherently results
in a complete miscarriage of justice,’” Spencer, 773 F.3d at 1138 (quoting Addonizio,
442 U.S. at 185). A miscarriage of justice occurs where a defendant is actually
innocent, or where a defendant’s sentence is “unlawful,” such as when the defendant
and his counsel are denied the right to be present at the sentencing hearing, or where
7
the sentence exceeds the statutory maximum. See id. at 1138-39. Additionally, a
sentencing error qualifies as a “fundamental defect” where “a prior conviction used to
enhance [the defendant’s] sentence has been vacated.” Id. at 1139. However, lesser
errors, such as a misapplication of the sentencing guidelines, do not authorize relief
under § 2255. Id. at 1140 (“A misapplication of advisory sentencing guidelines ... does
not violate an ‘ancient’ right, nor does it raise constitutional concerns.”). “When a
federal prisoner, sentenced below the statutory maximum, complains of a sentencing
error and does not prove either actual innocence of his crime or the vacatur of a prior
conviction, the prisoner cannot satisfy the demanding standard that a sentencing error
resulted in a complete miscarriage of justice.” Id. at 1139.
Petitioner’s argument that the Court incorrectly enhanced his Guidelines range
is a non-constitutional issue that does not create a basis for relief under § 2255. The
claim does not implicate a miscarriage of justice or the legality of his conviction and
sentence. Even if the Court assigned Petitioner a lower base offense level under §
2K2.1, his 77-month prison sentence – which was well below the 10-year maximum
authorized under 18 U.S.C. §§ 922(g) and 924(a)(2) – was still lawful. Nor does
Petitioner assert that either of his controlled substance convictions have been vacated.
As such, Grounds One through Three are not cognizable under 28 U.S.C. § 2255. 3
In any event, Petitioner’s challenge to his base offense level under U.S.S.G. §
2K2.1(a)(2) lacks merit. Petitioner indeed had two prior convictions for a “controlled
substance offense”: (1) his 2005 felony conviction in federal court for the possession of
crack cocaine with intent to distribute, PSR at ¶ 51, and (2) his 2000 felony conviction
in a Florida court for the sale or delivery of cocaine, PSR at ¶ 39. Both convictions were
controlled substance offenses because they (1) were punishable by a term of
imprisonment exceeding one year, and (2) prohibited the manufacture, import, export,
3
8
B. Ground Four: Whether Counsel Failed to File a Requested Appeal
Petitioner also contends that counsel gave ineffective assistance by failing to
file a requested appeal. (Civ. Doc. 1 at 8). After reviewing the allegations and the
record, the Court ordered Petitioner’s federal public defenders – Jeffrey Gedbaw and
Lisa Call – to submit affidavits and any records related to the claim pursuant to Rule
7 of the Rules Governing Section 2255 Proceedings. (Civ. Doc. 13). The Court also
directed the prosecutor to do the same to the extent he had any relevant information.
Each of the attorneys responded to the Court’s order.
According to Ms. Call’s affidavit (Civ. Doc. 15), her name appears on the docket
only because she was the branch chief of the Jacksonville Division of the Federal
Defender’s Office. (Id. at ¶ 1). As the branch chief, she assigned Mr. Gedbaw to
represent Petitioner and had no communication with Petitioner pertaining to the
instant criminal case. (Id. at ¶¶ 2, 3). However, Ms. Call did represent Petitioner
distribution, or dispensing of a controlled substance or the possession of a controlled
substance with intent to manufacture, import, export, distribute, or dispense. U.S.S.G.
§ 4B1.2(b); see also 28 U.S.C. § 994(h)(2)(B) (identifying a violation of 21 U.S.C. § 841
as a prior conviction that would support what the Guidelines call the career offender
enhancement); United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014)
(possession of cocaine with intent to sell, in violation of § 893.13(1)(a), Fla. Stat., is a
controlled substance offense). The Court recognizes that the United States Supreme
Court granted certiorari review to determine whether § 893.13(1)(a), Fla. Stat. is a
“serious drug offense” under the Armed Career Criminal Act, Shular v. United States,
No. 18–6662, but Smith remains controlling in the meantime.
Nor did the Court “look beyond the authorized documents of a prior state
conviction” to enhance the Guidelines range, as Petitioner alleges in Ground Two. (Civ.
Doc. 1 at 5). Petitioner admitted the existence of both the aforementioned drug
convictions during his change-of-plea colloquy (Crim. Doc. 40 at 20-23), and he did not
object to the PSR’s Guidelines calculation or the PSR’s description of these convictions
(see Crim. Doc. 41 at 6).
9
regarding a violation of the terms of supervised release in a different criminal case
(No. 3:05-cr-59-J-32MCR). (Id. at ¶ 4). Ms. Call states that following revocation and
sentencing in that case, Petitioner wanted to file a notice of appeal and she did so on
May 5, 2014. (Id.). In addition, Ms. Call attached a copy of a letter sent by Mr. Gedbaw
to Petitioner after the Court entered judgment in the instant criminal case. (Id. at ¶
5; Civ. Doc. 15-1). “The letter is signed by Mr. Gedbaw and is maintained as part of
[Petitioner’s] file … at the Federal Public Defender’s office. The letter states that Mr.
Grice did not want to appeal the sentence.” (Civ. Doc. 15 at ¶ 5; Civ. Doc. 15-1).
According to Mr. Gedbaw’s affidavit, he was Petitioner’s lead trial counsel in
the instant criminal case. (Civ. Doc. 17 at ¶ 1). Mr. Gedbaw recognized Petitioner, but
due to the passage of time, he “d[id] not have any independent recollection of this case
beyond what is documented in the original case file” that he reviewed. (Id. at ¶ 3). As
such, Mr. Gedbaw’s affidavit is “based solely upon a review of the original case file
that was created by the Office of the Federal Public Defender, as well as the general
policies of the office during [his] period of employment in the Jacksonville branch
office.” (Id.). Mr. Gedbaw states as follows:
4.
During my employment with the Federal Public Defender, our
office had a standard form that was titled “Appeal Discussion
Checklist.” The checklist was placed in each case that was opened
by the office. It was the policy within our office that the attorneys
were to complete the checklist on each case that was assigned to
them as certain events on the list occurred. For example, when
reviewing a plea agreement, the attorneys were required to discuss
appellate rights, as well as any waiver that may have been
included in the plea agreement. Additionally, after a sentence was
issued in a case, the attorneys were required to advise their clients
of their right to appeal, and any deadline to file a notice of appeal.
Finally, it was our policy to also send a post-sentence letter to all
10
clients reminding them of their right to appeal, and remind them
of the specific date by which any appeal would be filed. It should
be noted that these tasks described above were the minimum
standards required by our office, but in my personal experience, I
would discuss appellate rights with clients beyond the minimum
standards required.
5.
Upon completion of each required task as set forth in the preceding
paragraph, the policy of the office was that the attorney was
required to document the specific date on which the task was
performed. I cannot speak for other attorneys in the office, but my
general practice was to document the date the specific tasks were
performed as soon as possible after the fact, and while the
information was still fresh in my mind. Upon a review of the file
provided to me, there was nothing contained in the file that would
suggest I deviated from that standard practice in this specific case.
6.
On the case of Mr. Grice, the records reflect that I reviewed the
plea agreement and discussed any waiver of appellate rights with
Mr. Grice on June 11, 2015. The file reflects that the Judgment
and Commitment Order in this case was signed on December 18,
2015, which would mean that the due date for filing a Notice of
Appeal would have been January 1, 2016. The notes documented
on the checklist indicate that I discussed with Mr. Grice whether
he wanted me to file a Notice of Appeal on December 23, 2015, and
that our office sent him our standard closing letter on December
29, 2015, memorializing the fact that he had advised me he did not
want to appeal the sentence he received on this case.
(Id. at ¶¶ 4-6). Mr. Gedbaw attached a copy of the Appeal Discussion Checklist as
exhibit 1 (Civ. Doc. 17-1, Appeal Discussion Checklist), and a copy of the closing letter
as exhibit 2 (Civ. Doc. 17-2, Closing Letter). Mr. Gedbaw continued:
8.
In response to the specific questions the Court ordered be
answered under oath in the Court’s Order from March 4, 2019, the
affiant states the following:
(a) The affiant does not recall the Petitioner, Mr. Leonard Grice,
ever instructing counsel to appeal his conviction. Based on the
documentation reviewed by the affiant, Mr. Grice advised
counsel he did not wish to appeal his conviction.
(b) The affiant has no information indicating that Mr. Grice ever
11
indicated an interest in appealing his conviction.
(c) According to the appeal checklist, counsel discussed any
appellate waiver with Mr. Grice on June 11, 2015, prior to Mr.
Grice entering a guilty plea. Counsel further discussed with
Mr. Grice his right to appeal on December 23, 2015, and sent a
closing letter on December 29, 2015, in which counsel
memorialized the fact that based on previous discussions, Mr.
Grice did not wish to appeal his conviction.
(Civ. Doc. 17 at ¶ 8).
Consistent with Mr. Gedbaw’s affidavit, the Appeal Discussion Checklist
reflects that Mr. Gedbaw advised Petitioner about his appeal rights and the waiver of
appeal on June 11, 2015, when Mr. Gedbaw reviewed the Plea Agreement with
Petitioner. (Civ. Doc. 17-1). The checklist also reflects that on December 23, 2015, Mr.
Gedbaw had a post-sentencing discussion with Petitioner about the right to appeal,
and that on December 29, 2015, Mr. Gedbaw sent a post-sentencing letter to Petitioner
regarding an appeal. (Id.). Mr. Gedbaw’s closing letter to Petitioner, dated December
29, 2015, states as follows:
12
(Civ. Doc. 17-2).
According to the prosecutor’s affidavit, his personal notes from the case appear
to have been destroyed, but he was able to review some files that had been preserved.
(Civ. Doc. 16 at ¶ 1 & n.1). The prosecutor “was able to locate one item of
correspondence from the defendant to our office dated July 6, 2015. The letter was
prior to sentencing, generally referenced cooperation and did not discuss an appeal.”
(Id. at ¶ 2). Otherwise, the prosecutor had no relevant information to offer.
Petitioner responded to the affidavits on April 24, 2019 (Civ. Doc. 18) and on
August 6, 2019 (Civ. Doc. 21). In the first response, Petitioner states that the day after
his sentencing hearing (or December 16, 2015), he called the Federal Public Defender’s
office to speak to Mr. Gedbaw and was told that Mr. Gedbaw was busy, but that Mr.
Gedbaw would come out to see him in a couple of days. (Civ. Doc. 18 at 1). According
to Petitioner, Mr. Gedbaw visited him at the Baker County Detention Center
sometime after December 18, 2015 (when the judgment was entered). (Id.). 4 Petitioner
Petitioner states that “[i]t’s on record, the phone call I made after sentencing
[and] me being pulled for an attorney/ client visit.” (Civ. Doc. 18 at 1-2). Petitioner
asserts that with the assistance of counsel, he could obtain these records from the
Baker County Detention Center. (Id. at 2). But Petitioner does not assert that the call
log or the visitor’s log, in and of themselves, would corroborate his allegation that he
instructed Mr. Gedbaw to file an appeal. Indeed, unless the Baker County Detention
Center recorded the attorney-client meeting between himself and Mr. Gedbaw and
maintained that recording (which Petitioner does not allege), the Baker County
Detention Center would not have a record of Petitioner instructing counsel to file a
notice of appeal.
The Court assumes as true that Petitioner called to speak with Mr. Gedbaw and
that Petitioner and Mr. Gedbaw had an attorney-client meeting at the Baker County
Detention Center. Because this is the extent of what the detention center’s records
would have shown, and the Court assumes their truth, it is not necessary to appoint
counsel for Petitioner to obtain the detention center’s records.
4
13
insists that during the meeting, he “instructed Mr. Gedbaw to appeal my case.” (Id.).
Petitioner also asserted that “there is nothing coming from Mr. Gedbaw stating that I
did not ask to appeal my case.” (Id. at 2). Responding to the government’s argument
that the nine-month delay in filing the § 2255 Motion undermines his allegations,
Petitioner states that “once I was in the system it took me months to get help with my
legal work” and that he had difficulty conducting research for the motion. (Id.).
Based on the first response, the Court was uncertain whether Petitioner had
received Mr. Gedbaw’s affidavit and the enclosed exhibits. So, on its own initiative,
the Court mailed the documents to Petitioner and gave him a second opportunity to
respond. (Civ. Doc. 20). In his second response, Petitioner reasserts that he “personally
conveyed a request to my ‘public defender’ to file an appeal on my sentence.” (Civ. Doc.
21 at 1). Petitioner also alleges, for the first time, that his “public defender conveyed
that my appeal would be properly filed on time within the one year limatation [sic]
under the rules of exception.” (Id.). Petitioner does not elaborate on what he means by
this, considering he had 14 days to file a notice of appeal, not one year. Petitioner did
not provide any supporting documentation with his responses. Notably, Petitioner
does not address Mr. Gedbaw’s closing letter (Civ. Doc. 15-1 / Civ. Doc. 17-2) or the
Appeal Discussion Checklist (Civ. Doc. 17-1) in either response. Petitioner also does
not deny the authenticity of the closing letter, nor does he deny having received it on
or around December 29, 2015, when Mr. Gedbaw mailed it to him.
The Supreme Court has “long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is
14
professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing
Rodriguez v. United States, 395 U.S. 327 (1969)).
This is so because a defendant who instructs counsel to initiate an appeal
reasonably relies upon counsel to file the necessary notice. Counsel's
failure to do so cannot be considered a strategic decision; filing a notice
of appeal is a purely ministerial task, and the failure to file reflects
inattention to the defendant's wishes.
Id. “[W]hen counsel fails to file a requested appeal, a defendant is entitled to
resentencing and to an appeal without showing that his appeal would likely have had
merit.” Peguero v. United States, 526 U.S. 23, 28 (1999) (citing Rodriguez, 395 U.S. at
329-30). But “[a]t the other end of the spectrum, a defendant who explicitly tells his
attorney not to file an appeal plainly cannot later complain that, by following his
instructions, his counsel performed deficiently.” Flores-Ortega, 528 U.S. at 477
(emphasis in original) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)).
“[B]etween those poles” is the situation “when the defendant has not clearly
conveyed his wishes one way or the other.” Id. In that scenario, the first question is
whether counsel consulted the defendant about an appeal, and if so, whether counsel
followed the defendant’s wishes. Id. at 478. If counsel did not consult the defendant,
“the court must in turn ask a second, and subsidiary question: whether counsel’s
failure to consult with the defendant itself constitutes deficient performance” under
the circumstances. Id.
This case is not one of the “in between” cases. Petitioner does not allege that
counsel failed to adequately consult him about an appeal. Petitioner alleges simply
that he instructed counsel to file a notice of appeal and that counsel failed to do so.
15
(Civ. Doc. 1 at 8; Civ. Doc. 18; Civ. Doc. 21). As such, this case does not require an
inquiry into whether counsel had a duty to consult under Flores-Ortega (although the
record reflects that counsel fulfilled the duty to consult anyway). Instead, this case
turns on whether Petitioner in fact instructed counsel to file a notice of appeal.
Here, the affidavits and records on file refute Petitioner’s allegation that he
directed counsel to file an appeal. The record reflects just the opposite: that Mr.
Gedbaw consulted Petitioner about an appeal and Petitioner instructed Mr. Gedbaw
not to pursue one. (Civ. Docs. 15-1, 17, 17-1, 17-2).
Petitioner disputes this version of events. “Ordinarily, contested factual issues
in a § 2255 proceeding may not be determined based only on affidavits.” AlvarezSanchez v. United States, 350 F. App’x 421, 423 (11th Cir. 2009) (emphasis added).
However, “[w]here the affidavits are supported by other evidence in the record the
court may rely upon them.” Owens v. United States, 551 F.2d 1053, 1054 (5th Cir.
1977). 5 Here, other evidence in the record corroborates Mr. Gedbaw’s statement that
he does not recall Petitioner instructing him to pursue an appeal or indicating an
interest in doing so. Two records from the Federal Public Defender’s Office, on which
Mr. Gedbaw based his affidavit, reflect that Petitioner instructed Mr. Gedbaw not to
file a notice of appeal. The Appeal Discussion Checklist, which Mr. Gedbaw created
and contemporaneously updated, indicates that on December 23, 2015, he discussed
with Petitioner whether to pursue an appeal, and that on December 29, 2015, Mr.
Decisions issued by the former Fifth Circuit Court of Appeals before the close of
business on September 30, 1981, are binding in the Eleventh Circuit. Bonner v. City
of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
5
16
Gedbaw sent Petitioner a “post-sentence” “letter explaining appeal/ cross-appeal
rights & time.” (Civ. Doc. 17-1). Next to the line stating “If client decides to appeal/
cross-appeal, date we received notice,” the Checklist states “N/A,” reflecting that
Petitioner did not instruct counsel to file an appeal. (Id.). Additionally, Mr. Gedbaw’s
closing letter to Petitioner, dated December 29, 2015, states in pertinent part:
“Enclosed is a copy of the Judgment in your case that was filed on December 18, 2015.
As discussed, you do not wish to appeal your sentence and I agree with your decision.”
(Civ. Doc. 17-2) (emphases in original). The letter goes on to inform Petitioner that the
Federal Public Defender’s representation in the case had come to an end. (Id.).
Petitioner does not deny receiving the closing letter or dispute its authenticity.
In the closing letter, Mr. Gedbaw invited Petitioner to contact him if he “h[ad] any
specific questions about the case.” (Id.). If the closing letter did not accurately reflect
Petitioner’s wishes about an appeal, it would be reasonable to expect that Petitioner
would have contacted Mr. Gedbaw to correct the mistake. But the record contains no
indication that Petitioner made any effort to follow up with Mr. Gedbaw about the
closing letter or about pursuing an appeal. According to Petitioner himself, he did not
contact the Federal Public Defender’s Office again until several months later, after
filing the § 2255 Motion, when he sought the office’s help in obtaining records from the
Baker County Detention Center. (Civ. Doc. 18 at 2).
Moreover, while not conclusive by themselves, the surrounding circumstances
only further indicate that Petitioner did not wish to pursue an appeal. First, Petitioner
pled guilty to the charge in the Indictment, which “reduces the scope of potentially
17
appealable issues” and “indicate[s] that the defendant s[ought] an end to judicial
proceedings.” Flores-Ortega, 528 U.S. at 480. Second, and significantly, Petitioner
waived the right to appeal his sentence as part of the Plea Agreement. Although the
waiver would not have relieved counsel of the obligation to file a notice of appeal if
Petitioner had instructed him to do so, Garza v. Idaho, 139 S. Ct. 738, 746 (2019), the
waiver is some evidence that Petitioner did not wish to pursue an appeal. Third, near
the end of the sentencing hearing, when the Court advised Petitioner he had 14 days
in which to file a notice of appeal and that “[f]ailure to appeal within that 14-day period
would be a waiver of your right to appeal,” Petitioner voiced no interest in doing so.
(Crim. Doc. 41 at 22). Indeed, right after the Court advised Petitioner of the 14-day
appeal period, the Court asked if either party had any objection to the sentence and
Petitioner voiced none. (Id.). Finally, Petitioner received exactly the sentence that both
his attorney and the United States recommended: 77 months in prison, which
represented the low end of the Guidelines range. See Flores-Ortega, 528 U.S. at 480
(in determining whether a rational defendant would have wanted to appeal, a court
should consider whether the defendant received the sentence he bargained for). All of
these circumstances suggest that Petitioner did not wish to appeal his sentence.
Combined with the affidavits and records submitted to the Court, the record
affirmatively contradicts Petitioner’s claim that he instructed counsel to pursue an
appeal.
“[A] defendant who explicitly tells his attorney not to file an appeal plainly
cannot later complain that, by following his instructions, his counsel performed
18
deficiently.” Flores-Ortega, 528 U.S. at 477 (emphasis in original) (citing Jones, 463
U.S. at 751). Petitioner is entitled to neither an evidentiary hearing nor relief. Ground
Four is due to be denied.
IV.
Conclusion
Having considered each of Petitioner’s claims for relief, and finding that none
warrants relief under 28 U.S.C. § 2255, it is hereby ORDERED:
1. Petitioner Leonard Grice’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.
2. Petitioner’s Motion to Appoint Counsel (Civ. Doc. 9) is DENIED.
3. Petitioner’s Motion to Expedite (Civ. Doc. 12) is GRANTED insofar as
Petitioner requests resolution of his § 2255 Motion.
4. The Clerk shall enter judgment in favor of the United States and against
Petitioner, and close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to
appeal a district court’s denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (COA). Id. “A [COA] may issue…
only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 2253(c)(2). To make such a showing, Petitioner “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
19
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Petitioner has not made the requisite showing in these circumstances. Because
Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in
forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 21st day of August, 2019.
TIMOTHY J. CORRIGAN
United States District Judge
Lc 19
C:
Counsel of record
Pro se petitioner
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?