Boyce v. United States of America

Filing 17

MEMORANDUM AND ORDER: HEREBY ORDERED that Movant James E. Boyce's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (ECF No. 1) is HELD IN ABEYANCE. FURTHER ORDERED that the Court will hol d an evidentiary hearing, in order to determine the facts relating to the alleged failure to file a notice of appeal on the part of Movant's counsel. FURTHER ORDERED that attorney EricW. Butts, 720 Olive Street, Suite 1630, St. Louis, MO 63101, phone [phone], is appointed to represent Movant in this matter. The Clerk of the Court shall provide Movant's appointed counsel with a complete copy of the court file at no cost. FURTHER ORDERED that the presence and participation of Jame s E. Boyce, Inmate # 35559-044, is required for the evidentiary hearing, which will be held before this Court on Tuesday, September 23, 2014, at 10:00 a.m. FURTHER ORDERED that the United States Marshal Service shall transport Movant James E. Boyce, Inmate # 35559-044, from FCI Estill, in Estill, South Carolina, to this Court, to attend the hearing. FURTHER ORDERED that the remaining claims in Movant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person i n Federal Custody (ECF No. 1) are HELD IN ABEYANCE, pending the outcome of the scheduled evidentiary hearing. ( Evidentiary Hearing set for 9/23/2014 10:00 AM in Courtroom 16N before District Judge Jean C. Hamilton.), Attorney Eric W. Butts for James E. Boyce added. Signed by District Judge Jean C. Hamilton on 07/29/2014. (CLK)cc:Certified copies to USM

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES E. BOYCE,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:13CV2337 JCH

MEMORANDUM AND ORDER
This matter is before the Court on pro se Movant James E.

Motion under 28 U.S.C. §

2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed November 18,
2013. (ECF No. 1).
BACKGROUND
By way of background, on January 9, 2009, Movant pled guilty to one count of being a felon
in possession of a firearm, in violation of Title 18 U.S.C. § 922(g)(1). The Plea Agreement expressly
provided that both parties reserved the right to appeal all sentencing issues. (Cause No. 4:08CR578
JCH, ECF No. 27, P. 3). The Plea Agreement also
Government may move for an upward departure based upon the inadequacy of the criminal history
(Id.). The Plea Agreement further made clear that it was
possible Movant would be an Armed Career Criminal pursuant to 18 U.S.C. § 924(e), and as a result
would face a mandatory minimum sentence of 15 years. (Id., PP. 6, 7-8, 10-11).
Following extensive briefing and an evidentiary hearing, this Court adopted the conclusion of
the United States Probation Office in its Presentence Investigation Report that Movant was not an

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Armed Career Criminal. (Cause No. 4:08CR578 JCH, ECF No. 62). The Court then sentenced
Movant to 37 months imprisonment, followed by supervised release for two years. (Id., ECF No.
63).

February 28, 2011, the Eighth Circuit issued its judgment reversing the decision of this Court.
(Cause No. 4:08CR578 JCH, ECF No. 75). The Court then resentenced Movant on April 23, 2013,
to a term of 180 months imprisonment, followed by three years supervised release. (Id., ECF No.
138).

pro se direct appeal of the Amended Judgment was denied as untimely. (Id., ECF

No. 145).
In the instant § 2255 Motion, filed November 18, 2013, Movant alleges he received
ineffective assistance of counsel, in that his counsel failed to file a notice of appeal.1
STANDARDS GOVERNING MOTIONS UNDER 28 U.S.C. § 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground that the
sentence was imposed in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack... 28 U.S.C. § 2255(a). Claims based
on a federal statute or rule, rather than on a specific constitutional guarantee, can be raised on
collateral review only if the alleged error constituted a fundamental defect which inherently results
in a complete miscarriage of justice.

Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129

L.Ed.2d 277 (1994) (citations omitted).2

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Movant makes other claims in his § 2255 Motion that will not be addressed in this Order.
[A]t least where mere statutory violations are at issue,
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2255 was intended to mirror §

The Court must hold an evidentiary hearing to consider claims in a § 2255 motion [u]nless
the motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief.

Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (quoting 28 U.S.C. § 2255).

Thus, a movant is entitled to an evidentiary hearing when the facts alleged, if true, would entitle
him to relief.

Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v.

Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim

without an

evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.

Shaw, 24 F.3d at 1043 (citation omitted).
DISCUSSION

As stated above, in his § 2255 Motion Movant maintains he received ineffective assistance
of counsel, in that his counsel failed to file a notice of appeal. An attorney s failure to file a notice
of appeal after being instructed to do so by his client constitutes ineffective assistance entitling the
[movant] to § 2255 relief.

Evans v. United States, 2006 WL 1300672, at *5 (E.D. Mo. May 8,

2006). No inquiry into prejudice or likely success on appeal is necessary. Id. (citing Holloway v.
United States, 960 F.2d 1348, 1356-57 (8th Cir. 1992)).
The appropriate remedy is to remand for re-sentencing, thus affording the
[movant] an opportunity to take a timely direct appeal. Barger v. United
States, 204 F.3d 1180, 1182 (8th Cir. 2000). For such a claim to succeed,
however, Movant must show that he instructed his counsel to file an appeal.
See Holloway, 960 F.2d at 1357.

2254 in operative effect.
(1974)).

Reed, 512 U.S. at 353 (quoting Davis v. United States, 417 U.S. 333, 344

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Id. The critical question, then, is whether Movant specifically asked his lawyer to file a notice of
appeal. Id.3 Upon consideration of the foregoing, the Court will hold an evidentiary hearing, in
order to determine the facts relating to the alleged failure to file a notice of appeal on the part of
Movant s counsel. See Crutcher v. United States, 2 Fed. Appx. 658 (8th Cir. 2001).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Movant

s Motion under 28 U.S.C. §

2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (ECF No. 1) is
HELD IN ABEYANCE.
IT IS FURTHER ORDERED that the Court will hold an evidentiary hearing, in order to
determine the facts relating to the alleged failure to file a notice of appeal on the part of Movant s
counsel.
IT IS FURTHER ORDERED that attorney Eric W. Butts, 720 Olive Street, Suite 1630, St.
Louis, MO 63101, phone [phone], is appointed to represent Movant in this matter. The
Clerk of the Court shall provide Movant s appointed counsel with a complete copy of the court file
at no cost.
IT IS FURTHER ORDERED that the presence and participation of James E. Boyce,
Inmate # 35559-044, is required for the evidentiary hearing, which will be held before this Court on
Tuesday, September 23, 2014, at 10:00 a.m.

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If Movant did ask for an appeal, his lawyer violated his Sixth Amendment rights by failing
to complete the ministerial task of filing a notice of appeal. Evans, 2006 WL 1300672, at *5
(internal quotation marks and citation omitted).
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IT IS FURTHER ORDERED that the United States Marshal Service shall transport
Movant James E. Boyce, Inmate # 35559-044, from FCI Estill, in Estill, South Carolina, to this
Court, to attend the hearing.
IT IS FURTHER ORDERED that the remaining claims in Movant s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (ECF No.
1) are HELD IN ABEYANCE, pending the outcome of the scheduled evidentiary hearing.

Dated this 29th Day of July, 2014.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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