Ingram #41999-039 v. United States of America

Filing 10

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

Ingram #41999-039 v. United States of America

D o c . 10

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

J A M IL LAVAHN INGRAM, M o v a n t, File No. 1:09-CV-891 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / OPINION T h is matter comes before the Court on Movant Jamil Lavahn Ingram's motion p u rsu a n t to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him b y this Court. For the reasons that follow, an evidentiary hearing will be granted. I. M o v an t was originally indicted on January 27, 2007, for conspiring to distribute more than 50 grams of a mixture containing cocaine base in violation of U.S.C. §§ 846, 841(a)(1), a n d 841(b)(1)(A)(iii). (File No. 1:07-CR-233, Dkt. No. 1, Indict.) Movant pleaded guilty o n May 14, 2008, pursuant to a plea agreement. (File No. 1:07-CR-233, Dkt. No. 35.) On O c to b e r 9, 2008, this Court sentenced Movant to 300 months incarceration and five years of s u p e rv is e d release. (File No. 1:07-CR-233, Dkt. No. 51.) Movant filed a pro se notice of ap p ea l and a motion for a certificate of appealability on June 1, 2009, both of which were d is m is s e d . (File No. 1:07-CR-233, Dkt. Nos. 58, 60.) Movant filed his § 2255 motion on S ep tem b er 28, 2009. (Dkt. No. 1.)

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II. T o prevail on a § 2255 motion "`a petitioner must demonstrate the existence of an e r ro r of constitutional magnitude which had a substantial and injurious effect or influence o n the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th C ir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Nonc o n s t i tu tio n a l errors are generally outside the scope of § 2255 relief. United States v. C o field , 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion a lle g in g non-constitutional error only by establishing a "`fundamental defect which in h e re n tly results in a complete miscarriage of justice, or, an error so egregious that it a m o u n ts to a violation of due process.'" Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1 9 9 9 ) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal q u o ta tio n marks omitted)). As a general rule, claims not raised on direct appeal are procedurally defaulted and m a y not be raised on collateral review unless the petitioner shows either: (1) "cause" and " a ctu a l prejudice"; or (2) "actual innocence." Massaro v. United States, 538 U.S. 500, 504 (2 0 0 3 ); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U .S . 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of c o u n s e l claim may be raised in a collateral proceeding under § 2255, whether or not the m o v a n t could have raised the claim on direct appeal. Id.

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A court is required to grant a hearing to determine the issues and make findings of fact a n d conclusions of law on a § 2255 motion "[u]nless the motion and the files and records of th e case conclusively show that the prisoner is entitled to no relief . . . ." 28 U.S.C. § 2255(b). Where the judge considering the § 2255 motion also conducted the trial, the judge m a y rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). I I I. M o v a n t alleges that Counsel was ineffective because he did not file an appeal despite M o v a n t's request that he do so. Id. "[A] lawyer who disregards specific instructions from th e defendant to file a notice of appeal acts in a manner that is professionally unreasonable." R o e v. Flores-Ortega, 528 U.S. 470, 477 (2000). As a result, the Court will "presume[] p re ju d ic e with no further showing from the defendant on the merits of his underlying claims w h e n the violation of the right to counsel rendered the proceeding presumptively unreliable o r entirely nonexistent." Id. at 484. Counsel is only required to file a notice of appeal upon th e request of the client, and in the absence of such request, Counsel must at the very least c o n s u lt with the client. Id. at 478. Consultation occurs when the attorney "advis[es] the d e f e n d a n t about the advantages and disadvantages of taking an appeal, and mak[es] a re a so n a b le effort to discover the defendant's wishes." Id. If consultation has occurred, then " [ c]o u n s e l performs in a professionally unreasonable manner only by failing to follow the d e f e n d a n t 's express instructions with respect to an appeal." Id. (emphasis added). Movant

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m u st show by a preponderance of the evidence that he expressly requested that Counsel file a notice of appeal, and Counsel failed to do so. See Pough v. United States, 442 F.3d 959, 9 6 4 (6th Cir. 2006) (quoting Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)). Movant alleges that he consulted with Counsel and told him to file a notice of appeal. (D k t. No. 1.) The government, in its response, claims that Counsel was told not to file an ap p ea l after consulting with Movant. (Dkt. No. 6, Attachs. 1, Letter; 2, Aff. of Mr. Richard Z a m b o n , at ¶ 16.) Because both parties stipulate that Counsel did consult with Movant , the is s u e is whether Movant expressly instructed Counsel to file an appeal on his behalf. Movant sent a letter to Counsel on February 6, 2009, almost four months after s e n te n cing , asking for an update on the status of Movant's appeal. (Dkt. No. 1, at 14.) C o u n s e l responded three days later saying that no appeal was pending because Movant s p e c if ic a lly "instructed [him] not to file an appeal after [they] discussed [Movant's] chances o f success on appeal." (Dkt. No. 6, Attach. 2.) Counsel stated that "had [Movant] instructed [ h im ] to file an appeal [he] would have done so." (Dkt. No. 6, Attach. 3, at ¶ 16.) After M o v a n t received the response from Counsel, Movant filed a notice of appeal along with a re q u e st for a certificate of appealability from the court to allow him to file the appeal even th o u g h he was late. (File No. 1:07-CR-233, Dkt. No. 57, Attach. 2.) In that letter, Movant a lleg e d the same facts he now claims in his § 2255 motion: that he requested Counsel to file a n appeal, Counsel did not file, and the ten day appeal period had closed. Id. Counsel states that "as part of [his] general practice [he] advise[s] clients of their

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ap p ellate rights while discussing the pre-sentence report with them, which usually takes place tw o or three weeks before sentencing." (Dkt. No. 6, Attach. 3, at ¶ 13.) While Counsel does n o t specifically remember a discussion with Movant prior to sentencing, he does claim to re c a ll discussing the appeal after sentencing when handing Movant the appeal packet. (Dkt. N o . 6, Attach. 3, at ¶ 14.) Counsel claims that it was during this discussion that Movant sp ec ifica lly instructed him not to file an appeal. (Dkt. No. 6, Attach. 2.) Movant's claim that he requested Counsel to file notice of appeal is contradicted by th e affidavit of Counsel. Both parties have provided letters that corroborate their

u n d e rs ta n d in g of the state of the appeal in the few months after sentencing. However, neither o f the letters were sent contemporaneously with any relevant discussions they may have had re g a rd in g an appeal. If Movant did request that Counsel file an appeal, and Counsel agreed to do so, then Counsel was ineffective for failing to file a notice of appeal and prejudice is p re s u m e d . Roe at 477. If Movant told Counsel not to file an appeal, then he has no basis to c la im ineffective assistance of counsel. Id. F o r the foregoing reasons, the files and records in this case do not conclusively show th a t Movant is entitled to no relief under § 2255. Accordingly, the Court will conduct an e v id e n tia ry hearing to resolve whether Movant asked Counsel to file an appeal on his behalf. A n order consistent with this opinion shall be entered.

Dated: December 2, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 5