Hardin v. United States of America

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS that Petitioner's objections are overruled; that the 7 Report and Recommendations is adopted as the opinion of the Court; that Respondent's 3 Motion to Dismiss is granted and that Petitioner's § 2255 motion is dismissed; that a limited Certificate of Appealability is granted; and that this civil action shall be closed. Signed by Judge J. Randal Hall on 02/26/2014. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

JULIAN KENNETH HARDIN,
Petitioner,
CV 113-067

v.

(Formerly CR 111-365)

UNITED STATES OF AMERICA,
Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation ("R&R"), to which objections have been filed (doc.
no. 9). The Magistrate Judge recommended granting Respondent's motion to dismiss
Petitioner's motion filed pursuant to 28 U.S.C. § 2255, because the collateral attack

waiver in Petitioner's written plea agreement was valid and Petitioner's guilty plea was
knowing and voluntary. (Doc. no. 7.)
In his objections, Petitioner challenges the Magistrate Judge's analysis on several
fronts, but only one merits further discussion. The Magistrate Judge concluded that

Petitioner's ineffective assistance claim concerning his counsel's failure to pursue a
direct appeal, after Petitioner requested he do so, did not undermine the validity of
Petitioner's guilty plea or the collateral attack waiver, and was therefore barred by the
collateral attack waiver (id at 8-9). See Williams v. United States, 396 F.3d 1340, 1342

& n.2 (1 lth Cir. 2005) ("An ineffective assistance of counsel argument survives a waiver

of appeal [or collateral attack] only when the claimed assistance directly affected the
validity of that waiver or the plea itself." (quoting United States v. White, 307 F.3d 506,
508-09 (5th Cir. 2002))). Petitioner argues that the Magistrate Judge's conclusion runs
afoul of the holding in Gomez-Diaz v. United States, in which the Eleventh Circuit

concluded that a § 2255 petitioner who entered into an appeal waiver did not have to

show a meritorious ground for appeal in order to prevail on a claim that his counsel was
ineffective for failing to file a notice of appeal when instructed to do so. 433 F.3d 788,

793-94 (11th Cir. 2005). However, the Magistrate Judge sufficiently discussed and

distinguished this case in the R&R (doc. no. 7, p. 9 n.3), and this Court has previously
held in similar circumstances that "upholding the collateral attack waiver does not run
afoul of the holding in United States v. Gomez-Diaz

" Marshall v. United States. No.

CV 111-097,2013 WL 772855, at *2 (S.D. Ga. Feb. 28, 2013).
The Court agrees with the Magistrate Judge's conclusion, which accords with its
positions in Marshall and Jones v. United States, No. CV 111-102, 2011 WL 6327519, at

*1 (S.D. Ga. Dec. 16, 2011). In Jones, the Court adopted the Magistrate Judge's
recommendation that the petitioner's collateral attack waiver barred an ineffective

assistance claim based on counsel's failure to consult about an appeal.

2011 WL

6327519, at *1. The Court granted a certificate of appealability ("COA") as to that issue,
and the case is currently pending before the Eleventh Circuit. Jones v. United States. No.
12-10562 (11th Cir. Feb. 1, 2012).

The Court considered a similar issue in Marshall, adopting a recommendation that
the petitioner's two ineffective assistance claims, based on his counsel's failure to

properly consult about an appeal and failure to file an appeal after the petitioner requested
2

he do so, were barred by his collateral attack waiver. 2012 WL 7634207, at *8 Report
and Recommendation adopted by 2013 WL 772855. Because Jones was pending before
the Eleventh Circuit, and because there was non-binding authority from within the

Southern District of Georgia potentially supporting the petitioner's argument that his

claims were not barred by the collateral attack waiver,1 the Court granted a COA as to
"whether Petitioner's collateral attack waiver bars his § 2255 claim that his trial counsel

provided ineffective assistance of counsel as a result of his actions related to pursuing a
direct appeal." Marshall. 2013 WL 772855, at *2. The petitioner's appeal on this issue
is also currently pending before the Eleventh Circuit. Marshall v. United States. No. 1312059 (11th Cir. May 8, 2013).

The determinative question here is whether a collateral attack waiver, as opposed
to an appeal waiver like the one at issue in Gomez-Diaz, bars Petitioner from collaterally
attacking his conviction and sentence based on counsel's failure to file an appeal when
instructed to do so. As stated by the Magistrate Judge in the R&R, such a claim does not

call into question the validity of the collateral attack waiver or guilty plea, and is
therefore barred by the collateral attack waiver. Williams. 396 F.3d at 1342 & n.2; see

also United States v. Falcon-Sanchez. 416 F. App'x 728, 730-31 (10th Cir. 2011)
(holding that ineffective assistance claim based on counsel's failure to file notice of

appeal as instructed by petitioner was barred by collateral attack waiver because the
claim "[did] not relate to the validity of the plea or the waiver"). Furthermore, the Court
rejects Petitioner's contention that an evidentiary hearing is warranted as to this issue.

1See e.g.. Simmons v. United States. No. CV 611-083, 2012 WL 1499469 (S.D.
Ga. Apr. 23, 2012) (Edenfield, J.).

(Doc. no. 9, p. 2.) To the contrary, it is appropriate to dismiss his § 2255 motion without

a hearing because, even assuming the truth of his allegations concerning his attorney's
failure to file an appeal, the claim is nevertheless barred by the collateral attack waiver.

See United States v. Howie. 166 F.3d 1166, 1169 (11th Cir. 1999) (reasoning that a
waiver of the right to pursue an appeal or collateral attack "includes a waiver of the right
to appeal [or collaterally attack] blatant error").

The other arguments Petitioner raises in his objections, related to his actual

innocence claim and the factual basis for his guilty plea, were thoroughly addressed and
dismissed by the Magistrate Judge, and do not warrant departing from the conclusions in

the R&R. Therefore, Petitioner's objections are OVERRULED, and the Magistrate
Judge's R&R is ADOPTED as the opinion of the Court. Accordingly, Respondent's
motion to dismiss is GRANTED (doc. no. 3), and Petitioner's § 2255 motion is
DISMISSED.

Having determined that Petitioner is not entitled to relief on his § 2255 motion,

the Court must determine whether to issue a COA. A federal prisoner must obtain a
COA before appealing the denial of his motion to vacate. This Court "must issue or deny

a certificate of appealability when it enters a final order adverse to the applicant." Rule
11(a) to the Rules Governing Section 2255 Proceedings. This Court should grant a COA
only if the prisoner makes a "substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel. 529 U.S. 473, 482-84 (2000). As

noted above, the Eleventh Circuit has not yet addressed the applicability of a collateral

attack waiver with regard to a § 2255 claim that trial counsel provided ineffective

assistance by failing to file—or to consult about filing—a direct appeal, although these
4

issues remain pending. See Marshall. No. 13-12059 (11th Cir. May 8, 2013); Jones. No.
12-10562 (11th Cir. Feb. 1, 2012). Accordingly, the Court GRANTS Petitioner a COA,
which shall be limited to the issue of whether Petitioner's collateral attack waiver bars his

§ 2255 claim that his trial counsel provided ineffective assistance of counsel by failing to
file a direct appeal after Petitioner requested he do so.
Upon the foregoing, this civil action shall be CLOSED.

SO ORDERED thisoffiday ofFebruary, 2014, at Augusta, Georgia.

HONdRABQTj. RAN^AUHALlT

UNITEg^TATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA