Mingo v. United States of America

Filing 9

ORDERED that the Deputy Clerk is directed to appoint counsel for Mingo and schedule an evidentiary hearing on Ground One. Signed by Magistrate Judge G. R. Smith on 12/17/14. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
MARTELL ANTWON MINGO,
Movant,
Case No. CV614-099
CR612-018

V.

UNITED STATES OF AMERICA,
Respondent.

ORDER
Previously in this 28 U.S.C. § 2255 proceeding brought by Martell
Antwon Mingo, the Court directed his appointed lawyer, Thomas Charles
Rawlings, to respond to Mingo's claim that Rawlings failed to comply
with Mingo's request that a direct appeal be filed. CR612-018, doc. 1049,

reported at 2014 WL 4702577. Rawlings attested that he duly consulted
with Mingo about his direct appeal rights just alter the Court sentenced
him. Doc. 1050 at 2. Mingo, he says, then signed the Court's "Notice of
Post-Conviction Consultation Certification ("Notice") electing not to
appeal.

1

Id. at 2-3.' This is not surprising, given Mingo's appellate

Furthermore, says Rawlings, Mingo never asked him to file an appeal, even when
the two later conferred about a prison transfer. Doc. 1050 at 3.

waiver, as explained to him during his guilty-plea hearing. Doc. 1065 at
31 1 34, 35, 37; see also doe. 1049 at 1-2 (he also waived his collateral
appeal rights).
But then this case took a wrong turn. Rawlings swore that,
immediately after he consulted with Mingo, he handed the Notice to the
courtroom deputy clerk to file. Doe. 1050 at 2. Yet it is not in the
record.' By that point the Court "ha[d] been reviewing Mingo's § 2255
motion under Rule 4(b) of the rules governing 28 U.S.C. § 2255
proceedings. The Government ha[d] not been given a chance to
respond." Doe. 1058, reported at 2014 WL 5393575. So, the Court gave
it that chance. Id.
In its response, the government discloses the U.S. Justice
Department's about-face on its waiver practices. Some background:
Until recently, local prosecutors sometimes demanded and received
direct and collateral review waivers from plea bargaining defendants.
The government would then, upon receipt of a § 2255 motion, seek to

The deputy clerk's sentencing "Minutes" form has a preprinted "Notice of
Counsel's Post-Conviction Obligations Provided" line on it. It is unchecked. Doc.
831. The sentencing hearing transcript ends with this from Rawlings: "Thank you.
If I may be excused, Your Honor, I'm going to file this with the Clerk and I'll be on
my way to Macon." Doe. 1055 at 19.
2

enforce such waivers.

See, e.g., Brown v. United States, 2013 WL

3831649 at * 1 (S.D. Ga. July 23, 2013) (William Benjamin Brown, who
pled guilty to failing to register as a sex offender and possessing
ammunition as a convicted felon, moves for 28 U.S.C. § 2255 relief. The
government contends that Brown's motion is barred, since he waived his
rights to appeal and collaterally attack his conviction and sentence.")
(cite omitted), adopted, 2013 WL 3967352 (S.D. Ga. Aug. 1, 2013).
But now -- as will be shown below -- the Department has changed
its policy about pursuing new waivers. As for existing waivers, the policy
seems to. be this: Where ineffective assistance claims could, in the
judgment of the U.S. Attorney, reasonably have some basis, the
government will not enforce the waiver. But where such claims lack
even facial merit, it will. Hence, in this case:
The government will not invoke the collateral-attack waiver in
Mingo's plea agreement to foreclose this particular [i.e., his lostappeal] claim. On October 14, 2014, Deputy Attorney General
James M. Cole issued a memorandum announcing a new
Department of Justice policy concerning claims of ineffective
assistance of counsel: "[for cases in which a defendant's ineffective
assistance claim would be barred by a previously executed waiver,
prosecutors should decline to enforce the waiver when defense
counsel rendered ineffective assistance resulting in prejudice or
when the defendant's ineffective assistance claim raises a serious
debatable issue that a court should resolve." If Mingo's allegation is
correct, then he suffered prejudice by missing a desired appeal.
3

This Court should hold an evidentiary hearing to resolve this
disputed issue of fact.
Doc. 1066 at 7-8.
Of course, the Court is not bound by the Justice Department's policy change. In
quest of leniency, a defendant who plea bargains for reduced sentencing exposure is
able to point to that plea as proof that he has accepted responsibility -- a point the
sentencing judge may well consider in being lenient. It is in that sense that the judge
absorbs and thus may be said to rely upon the plea bargain. And where that bargain
(as was the case here) includes a double waiver, the judge can be influenced by that,
too, since the defendant is sparing the taxpayers both direct appeal and collateral
review expenses (a natural corollary to the spared-trial-expense component of the
acceptance-of-responsibility factor in U.S. Sentencing Guidelines Manual § 3E1.1(b)).
Here, for that matter, the sentencing judge acknowledged Mingo's waiver when
determining the sentence. Doc. 1055 at 15 ("And also, the Court is mindful that he
has waived his appellate rights, but he has received more than appropriate benefits
by the plea agreement; and so a sentence at the high end of the Advisory Guidelines
is appropriate in this case, and the Court imposes such.").
What has been happening in "lost Notice" cases like this, however, is that the
guilty-plea convicted defendant gets sentenced, and then is free to examine the record
and spot a missing Notice. Later, at no cost to him (there is no filing fee for § 2255
motions), he may file a § 2255 motion claiming he wanted to appeal but his lawyer
ignored him. In that instance, the very same sentencing judge who may well have
relied upon that defendant's acceptance of responsibility when exercising sentencing
leniency is now asked to reverse the deal, thus enabling the movant to consume the
very judicial resources that he claimed to relinquish in pursuit of leniency.
All of that, of course, burdens the public fisc. See Hayes v. United States, 2011 WL
3468799 at * 5 n. 5 (S.D.Ga. Aug. 9, 2011) (estimated $10,000 expense for every "lost
appeal" case: judicial and staff time; prisoner transport costs for each evidentiary
hearing; hearing transcript; payment for new counsel expense; direct appeal costs if
the movant prevails, etc.). Hence, every failure to file a Notice can result in costly
evidentiary hearings and "second-chance appeals."
That is why the Court has cautioned counsel who fail to use the Notice that, if they
were appointed under the Criminal Justice Act, they will not be paid for their
services, and whether retained or appointed, they may be required to pay some or all
of the expenses associated with conducting a § 2255 hearing that would have been
unnecessary had the Notice been used. Holland v. United States, 2014 WL 5241531
at * 3 n. 8 (S.D. Ga. Oct. 14, 2014), adopted, 2014 WL 6485591 (S.D. Ga. Nov 17,
2014). In Holland, by the way, defense counsel failed to file the Notice, and Holland
4

In contrast, the government stands on Mingo's collateral appeal
waiver on ineffective-assistance-of-counsel claims that do not go to his
direct appeal right:
In his plea agreement, Mingo "voluntarily and expressly" waived
"the right to collaterally attack the sentence in any post-conviction
proceeding, including a 2255 proceeding, on any ground," and
without any exception. (Doc. 852 at 10.) A collateral attack
"[wjaiver will be enforced if the government demonstrates either:
(1) the district court specifically questioned the defendant about
the waiver during the plea colloquy, or (2) the record clearly shows
that the defendant otherwise understood the full significance of the
waiver." United States v. Benitez-Zapata, 131 F.3d 1444, 1446
(11th Cir. 1997). By signing his plea agreement, Mingo confirmed
that he had read and understood the entire document, including
the collateral-attack waiver. (Doc. 852 at 13.)
Id. at 8; see also McReed v. United States, 2014 WL 1238037, at * 5
(S.D. Ga. Mar. 21, 2014) (collecting cases). Again, the Rule 11
transcript here shows that Mingo clearly understood his waiver. Doc.
1065 at 31, 34 2 35, 37. The double waiver is enforceable.
Even if this Court rejects the Government's position (per the new
Justice Department policy), it agrees with it that Mingo is entitled to an

likewise sought to exploit that omission. Nevertheless, the Court held him to his
double waiver without seeking the government's response (i.e., it denied the motion
upon preliminary review under § 2255 Rule 4(b)). Id., 2014 WL 5241531 at * 3• An
important distinction arose there: Holland never "claim[ed] that he asked [his
lawyer] to file a direct appeal for him." Id. at * 1 n. 3. Here, in contrast, Mingo
affirms under penalty of perjury that he did. Doc. 1057. The government, in turn,
concedes he is entitled to an evidentiary hearing. Doe. 1066 at 10.
5

evidentiary hearing to resolve the factual conflict between Mingo and
Rawlings -- despite any showing that he knowingly waived his appellate
and collateral rights. Doc. 1066 at 10. It is settled, after all, that an
attorney's failure to file a requested notice of appeal is per se ineffective
assistance of counsel. Roe v. Flores-Ortega, 528 U.S. 470, 483-86 (2000);

Gaston v. United States, 237 F. App'x 495, 495 (11th Cir. 2007). And a
defendant claiming ineffective assistance on that score need not
demonstrate an ability to raise meritorious issues on appeal. Roe, 528
U.S. at 477-78. Instead, he can prove ineffective assistance by showing a
"reasonable probability" that he would have timely appealed had counsel
not failed to file an appeal on his behalf.

Id. at 484. This is the case

despite his double waiver. Gaston, 237 F. App'x at 497 (no burden to
show the issue he would raise falls outside his waiver); Gomez—Diaz v.

United States, 433 F.3d 788, 793 (11th Cir. 2005).
The double waiver, however, will most likely be enforced by the
appellate court, which means a win here will net Mingo nothing more
than a waste of judicial resources. See, e.g., Brown v. United States, 256
F. App'x 258, 261-62 (11th Cir. 2007) (§ 2255 movant's right to collateral

review was waived by sentence appeal waiver in plea agreement); Austin

v. United States, 2014 WL 3385307 at * 5 (S.D. Ga. Aug. 18, 2014).
In any event, the Court determines whether Mingo is entitled to an
evidentiary hearing on his lost-appeal claim by asking, under cases like

Gomez-Diaz, 433 F.2d at 792-93, and Friedman v. United States, 588
F.2d 1010 (5th Cir. 1979), does the record conclusively negate the factual
assertions in his § 2255 motion? Id. at 1015. If not, would Mingo be
entitled to relief if his factual allegations are proved true?

Id. If the

answer is no and yes respectively, then the Court must conduct a hearing
to ascertain the validity of those assertions. Id.4
Here the record fails to negate conclusively Mingo's "lost-appeal"
claim. The "Notice" that Rawlings swears exists never made it into the
record.' So there is no documentation to negate Mingo's assertion --

In that regard, "contested fact issues in § 2255 cases cannot be resolved on the
basis of affidavits." Friedman, 588 F.2d at 1015; see also Machibroda v. United
States, 368 U.S. 487 7 495 (1962) ("Not by the pleadings and the affidavits, but by the
whole of the testimony, must it be determined whether the petitioner has carried his
burden of proof and shown his right to a discharge.") (quotes and cite omitted);
United States v. Henderson, 2014 WL 4063930 at * 3 (E.D. La. Aug. 13, 2014); United
States v. Rivas-Lopez, 678 F.3d 353 7 358-59 (5th Cir. 2012) (evidentiary hearing
required for allegation of ineffective assistance of counsel because of conflicting
accounts and incomplete record on relevant factors).
Defense counsel should consult with their clients immediately after sentencing,
then execute the Notice, then personally file it at the Clerk's Office (ideally before
leaving the courthouse). If a client refuses to sign the Notice, counsel should write on
7

despite his signed, double-waiver guilty plea agreement -- that he
directed Rawlings to file a direct appeal.

Compare Eason v. United

States, CV614-073, doc. 2 at 9-10, 2014 WL 4384652 at * 3 (S.D. Ga. Sept.
3 2 2014) (rejecting same claim because the Notice form filed in that case
proved that movant had expressly elected not to appeal), adopted, doc. 6,
2014 WL 4956680 (S.D. Ga. Oct. 2, 2014), COA denied, doc. 14 (S.D. Ga.
Nov. 17, 2014). Hence, the Court is left with a swearing match.
An evidentiary hearing is thus warranted on Ground One of
Mingo's § 2255 motion. Moore v. United States, 2014 WL 1152860 at *
19 (S.D. Ala. Mar. 21, 2014) (ordering evidentiary hearing on conflicting
evidence whether movant instructed attorney to file an appeal); Johnson
v. United States, 2013 WL 6799204 at * 11 (M.D. Fla. Dec, 23, 2013)

("Where, as here, a decision on counsel's ineffectiveness for failure to file
a notice of appeal requires a credibility determination and the pleadings
are insufficient to establish the content of the communications between a
defendant and his counsel, an evidentiary hearing is necessary. Gomez-

Diaz v. United States, 433 F.3d at 792.").

it "client refused to sign," file it, then appeal in light of Anders v. California, 386 U.S.
738 (1967), cited in Brown, 256 F. App'x at 261-62.
8

Normally, the Court would defer resolution of Mingo's remaining §
2255 claims, but the government correctly argues that they are waived,
doc. 1066 at 8-9, and conclusory:
Mingo's remaining claims are all impermissibly conclusory. 6 In
ground two, he alleges that Rawlings was ineffective for failing to
object to incorrect items in the PSI. (Doe. 1 at 5.) He does not
specify which items were allegedly incorrect or demonstrate why
they are wrong. In ground three, he alleges that Rawlings was
ineffective for failing to contest the career offender designation.
(Doe. 1 at 7.) He does not offer any hint of factual or legal basis on
which his designation was erroneous. In ground four, he alleges
that Rawlings was ineffective for failing to bring to the Court's
attention two Supreme Court decisions. (Doe. 1 at 8.) He does not
specify which aspect of either of those decisions he wishes to invoke
nor does he explain how it would alter the outcome of his sentence.
Recognizing the conclusory nature of his claims, Mingo promised
four times to file a memorandum of law within ten days. (Doe. 1 at
4, 5 ) 7, 8.) More than two months later, he still has filed nothing.
Therefore, this Court should dismiss his claims with prejudice.
Id. at 9-10 (footnote added). Accordingly, in a post-hearing Report and
Recommendation, the Court will advise that Grounds Two, Three and
Four be summarily DENIED. For the moment, the Deputy Clerk is

6

See Chavez v. Sec 3' Fl. Dep't of Corrs., 647 F.3d 1057, 1061 (11th Cir. 2011) ("The
allegations must be factual and specific, not conclusory. Conclusory allegations are
simply not enough to warrant a hearing."), quoted in Holland, 2014 WL 5241531 at
*2 ; United States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (no evidentiary
hearing required when petitioner's allegations to support claim of ineffective counsel
were conclusory); 39A C.J.S. HABEAS CORPUS § 418 (Nov. 2014) ("A petition may be
dismissed without a hearing where it is not self-sustaining, or where allegations are
vague or conclusory, and the same is true where the allegations are frivolous or
without merit.") (footnotes omitted).

DIRECTED to appoint new counsel for Mingo and schedule an
evidentiary hearing on Ground One.

SO ORDERED this 1Lj day of December, 2014.

UNITED 9TATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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