Mingo v. United States of America

Filing 2

ORDERED that the Clerk directs Rawlings to attest whether he upheld his duty to confer. Rawlings must detail what became of the Notice of Post-Conviction Consultation Certification (did he receive one, was he otherwise aware of its existence, and if so, why was it not timely filed?). The affidavit is due within 14 days of the date this Order is served 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Martell Antwon Mingo. Signed by Magistrate Judge G. R. Smith on 9/22/14. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
MARTELL ANTWON MINGO,
Movant,
v.

Case No. CV614-099
CR612-018

UNITED STATES OF AMERICA,
Respondent.

ORDER
Martell Antwon Mingo pled guilty to Count 1 of a drug conspiracy
indictment (docs. 839 & 852) 1 and waived his direct appeal and collateral
review rights. 2 His counsel, however, failed to file a Notice of Post-

1

The Court is citing only to the criminal docket and using its docketing software's
pagination; it may not always line up with each paper document's printed pagination.
2

The plea agreement states that,
“[t]o the maximum extent permitted by federal law, the defendant voluntarily
and expressly waives the right to appeal the conviction and sentence and the
right to collaterally attack the sentence in any post-conviction proceeding,
including a §2255 proceeding, on any ground, except that: the defendant may
file a direct appeal of his sentence if it exceeds the statutory maximum; and
the defendant may file a direct appeal of his sentence if, by variance or upward
departure, the sentence is higher than the advisory sentencing guideline range
as found by the sentencing court. The defendant understands that this Plea
Agreement does not limit the government's right to appeal, but if the
government appeals the sentence imposed, the defendant may also file a direct
appeal of the sentence.

Conviction Consultation Certification (“Notice”) -- something routinely
filed in cases before this Court. See, e.g. , United States v. Smith , CR614012, doc. 26 (S.D. Ga. Sept. 4, 2014).
As explained in Eason v. United States , 2014 WL 4384652 (S.D. Ga.
Sept. 3, 2014) and Ortega v. United States , 2014 WL 3012657 (S.D. Ga.
July 2, 2014), lawyers have a duty to consult with their client about
taking a direct appeal -- even in appeal-waiver cases.

See Ortega , 2014

WL 3012657 at *1 n. 2 (collecting cases); United States v. Henderson ,
2014 WL 4063930 at *2 (E.D. La. Aug. 13, 2014) (citing this Court’s
Notice form in granting a second-chance appeal: “It is clear that, even
though Henderson waived virtually all of his post-conviction and
appellate rights, his counsel's failure to file a requested notice of appeal
constitutes per se ineffective assistance of counsel.”).
Every lawyer’s failure to do so (and file the Notice proving that
fact) can result in costly evidentiary hearings and “second-chance
appeals.” Hayes v. United States , 2011 WL 3468799 at * 5 n. 5 (S.D. Ga.
Aug. 9, 2011) (“It is not difficult to estimate that § 2255 motions like this
cost the taxpayers $10,000 or more, and in a time of record national
Doc. 852 at 10 (emphasis added). Mingo pleads none of the exceptions here.

debt.”), adopted, 2011 WL 4704219 (S.D. Ga. Oct. 6, 2011). The costs
associated with conducting the hearing (appointment of counsel for
defendant, transporting him from a distant prison, burdening the court's
time and limited resources) are avoided where defense counsel simply
files the Notice reflecting his client's wishes regarding an appeal.”).
Here the Court once again is faced with a double-waiver convict
claiming he asked his lawyer to file a direct appeal yet was ignored. Doc.
1048 at 4 (Ground One: “Failure of counsel to file direct appeal when
asked to do so was prejudicial.”). 3 In contrast to Ortega, the docket here
does not reflect that the Clerk furnished attorney Thomas Charles
Rawlings with a copy of the Notice at the sentencing hearing (that of
course does not excuse him from upholding his duty to consult). On the
other hand, and evidently because of Mingo’s double-waiver, there is no

3

A similar claim in Eason was recently neutralized by that Notice, sparing counsel
there from being summoned to a “he said, she said” hearing:

Independent grounds support denial of Ground Four of Eason's § 2255 motion,
where she faults her lawyer for failing to file the direct appeal that she claims,
under penalty of perjury, to have expressly requested. Doc. 39 at 8. In fact, she
expressly instructed him not to file a direct appeal. Doc. 41 at 4 (“Notice of
Post–Conviction Consultation Certification,” a form bearing Eason's signature,
memorializing her informed decision not to take an appeal).

Eason, 2014 WL 4384652 at * 3.
3

sentencing hearing transcript that perhaps might show that the
sentencing judge distributed the Notice to counsel. 4
The Court DIRECTS Rawlings to attest whether he upheld his
duty to confer. He must detail what became of the Notice (did he receive
one, was he otherwise aware of its existence, and if so, why was it not
timely filed?). That affidavit is due (the government shall ensure that he
files it) within 14 days of the date this Order is served. Reed v. United

States , 2014 WL 1347455 at * 2 (S.D. Ga. Apr. 4, 2014), cited in
Henderson , 2014 WL 4063930 at * 2. Mingo, who signed his § 2255
motion under penalty of perjury, doc. 1048 at 13, is reminded that § 2255
movants who lie to this Court may be prosecuted. 5

' Since that time the Clerk -- at least, for the Savannah Division of this Court -- has

routinely e-distributed the Notice to all appointed and retained counsel after they
first appear in a criminal case. See, e.g. , United States v. Strong , CR414-341 doc. 5
(S.D. Ga. Sept. 9, 2014) (“Notice to Defense Counsel” bearing a copy of the Notice).
Lying under oath, either live or “on paper,” is illegal . See United States v. Roberts ,
308 F.3d 1147, 1155 (11th Cir. 2002) (defendant's falsely subscribing to statement in
his habeas petition that he had not previously filed a § 2255 motion was "material" for
purposes of perjury prosecution; statement fooled the clerk of the court into
accepting the "writ" for filing, and led the magistrate judge to consider its merits until
she discovered that the "writ" was a successive § 2255 motion in disguise); United
States v. Dickerson , CR608-36, doc. 1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant
indicted for perjury for knowingly lying in his motion seeking collateral relief from
his conviction); id., doc. 47 (guilty verdict), cited in Irick v. United States , 2009 WL
2992562 at * 2 (S.D. Ga. Sept. 17, 2009 (unpublished); see also Colony Ins. Co. v. 9400
Abercorn, LLC , 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga. 2012).
2

SO ORDERED this 22nd day of September, 2014.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA