Pope v. USA

Filing 8

MEMORANDUM ORDER GRANTING in part as to the claim that trial counsel provided ineffective assistance of counsel by failing to file a notice of appeal and is hereby DENIED without prejudice as to all other claims. The Petitione r shall remain in the custody of the United States Attorney General and the Bureau of Prisons pending the entry of the amended Judgment. The Petitioner may appeal the Amended Judgment in a Criminal Case as explained in this Order. re 1 Motion to Vacate/Set Aside/Correct Sentence (2255), Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by District Judge Martin Reidinger on 05/03/2010. (thh)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C ivil Case No. 1:09cv269 [C rim in a l Case No. 1:07cr46]

M IC H AE L G. POPE, P e t it io n e r , vs. U N ITE D STATES OF AMERICA, R e s p o n d e n t. ______________________________

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M E M O R AN D U M AND ORDER

TH IS MATTER is before the Court on the Petitioner's Motion to V a c a te , Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [D o c . 1].

P R O C E D U R AL HISTORY O n May 3, 2007, the Petitioner was charged with one count of c o n s p ira c y to traffic in counterfeit goods, in violation of 18 U.S.C. §371, seven c o u n ts of trafficking in counterfeit goods, in violation of 18 U.S.C. §2320, and two counts of money laundering, in violation of 18 U.S.C. §1957(a). United

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S ta te s v. Pope, Criminal Case No. 1:07cr46 [Doc. 1]. On June 29, 2007, the P e titio n e r entered into a Plea Agreement with the Government pursuant to wh ic h he agreed to plead guilty to Count One in exchange for the dismissal o f the remaining counts at sentencing. [Doc. 12, at 1]. The Plea Agreement c o n ta in e d an express waiver of his right to file a direct appeal except as to c la im s of ineffective assistance of counsel and prosecutorial misconduct. [Id., a t 5]. On July 3, 2007, the plea agreement was amended as to matters not re le va n t to this decision. [Doc. 14, at 10]. O n that same day, the Petitioner appeared before Magistrate Judge D e n n is L. Howell and pled guilty to conspiracy to traffic in counterfeit goods. J u d g e Howell engaged the Petitioner in a lengthy colloquy to ensure that he u n d e rs to o d the nature and consequences of the proceedings and his actions. [D o c . 15]. On July 7, 2008, Hon. Lacy H. Thornburg sentenced the Petitioner to 37 months of imprisonment. [Doc. 25]. The Petitioner did not file a direct a p p e a l from his conviction and sentence. As a result, the Petitioner's

c o n vic tio n and sentence became final, for purposes of filing a motion pursuant to §2255, when the time for filing a direct appeal expired. United States v. W ils o n , 256 F.3d 217, 221 (4 th Cir. 2001), certiorari denied 534 U.S. 1086, 122 S .C t. 823, 151 L.Ed.2d 705 (2002), citing Kapral v. United States, 166 F.3d

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5 6 5 , 577 (3 rd Cir. 1999); accord, United States v. Walker, 194 F.3d 1307 (4 th C ir. 1999), citing Adams v. United States, 173 F.3d 1339, 1342 n.2 (11 th Cir. 1 9 9 9 ). O n July 13, 2009, the Petitioner timely filed this civil action attacking his c o n vic tio n and sentence claiming, among other things, that his trial attorneys we re ineffective for having failed to file an appeal as the Petitioner requested. O n September 11, 2009, this case was reassigned to the undersigned when J u d g e Thornburg retired. In response to an Order from the Court to respond, the Government filed a ffid a vits from defense counsel in which they deny ever receiving a directive fro m the Petitioner to file a notice of appeal. [Doc 5-1, Doc. 5-2]. The

G o v e r n m e n t then conceded that under Fourth Circuit precedent, this Court wo u ld be required to conduct an evidentiary hearing to resolve the credibility d is c re p a n c ie s between the Petitioner's allegation and his attorneys' affidavits. [D o c . 5, at 11]. The Government recognizes that Petitioner does not state that he u n e q u ivo c a lly asked [trial counsel] to file a notice of appeal on his b e h a lf, but in light of the inference from his pleading that he may h a ve done so and at least made repeated attempts to c o m m u n ic a te his desire to appeal, the Government believes that th e Fourth Circuit would require an evidentiary hearing or that P e titio n e r be permitted to file a timely notice of appeal.

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[Id .]. T h e Government therefore requests that the motion pursuant to §2255 b e dismissed without prejudice and that an amended judgment be entered fro m which the Petitioner may appeal. [Id., at 12]. The Government also did n o t respond to the other allegations raised in the motion but instead asked for a n extension of time within which to do so if the Court declined to first address th e issue of appeal.

D I S C U S S IO N W h e re a defendant unequivocally instructs an attorney to file a timely n o tic e of appeal, the attorney's failure to file the appeal is per se ineffective a s s is ta n c e of counsel regardless of the merits of the appeal. United States v. Poindexter, 492 F.3d 263 (4 th Cir. 2007); United States v. Peak, 992 F.2d 3 9 , 42 (4 th Cir. 1993). Counsel's performance is ineffective under these c irc u m s ta n c e s even when the proposed appellate claim involves a matter w h i c h is covered by a waiver provision in the plea agreement. Poindexter, 4 9 2 F.3d at 273. In this case, the Petitioner did sign an appeal waiver and th u s , he may "obtain little more than an opportunity to lose at a later date." Id. N o n e th e le s s , the Fourth Circuit has clearly held that the right to have the

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a p p e a l filed must be upheld in such circumstances. Id. The Petitioner has alleged that his counsel was ineffective because he "c a lle d [his attorney] to tell him that [he] wanted to appeal." [Doc. 1, at 10]. He wa s not able to speak directly with his attorney until the last day for filing an a p p e a l. [Id.]. Thus, although the Government has filed its response containing a ffid a vits in which the Petitioner's former attorneys denied this allegation, the C o u rt is compelled to give the Petitioner the benefit of the doubt. United S ta te s v. Santana, 263 Fed.Appx. 334, 335 (4 th Cir. 2008) (noting that c re d ib ility determinations should not be made on conflicting affidavits). The C o u rt therefore finds that the Petitioner's Motion to Vacate should be granted o n ly as to his claim that counsel was ineffective for failing to file a notice of a p p e a l on his behalf. The Court will vacate its original judgment and enter a n e w judgment from which an appeal can be taken. The Petitioner's remaining claims are dismissed without prejudice. Because [the Petitioner] has never had a direct appeal, ... taking fu rth e r action on [his] motion beyond granting [the] Peak claim [wo u ld be] inappropriate. The [Court will dismiss] the remaining c la im s without prejudice to [his] right to file another habeas m o tio n , if necessary, after a direct appeal. United States v. Killian, 22 Fed.Appx. 300, 301 (4 th Cir. 2001).

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N O T IC E OF APPEAL RIGHTS T h e Petitioner is hereby advised that he has an absolute right to appeal h is criminal case and any issues in it to the United States Fourth Circuit Court o f Appeals. Should the Petitioner choose to appeal, he must file a Notice of A p p e a l with the Clerk of Court for the United States District Court for the W e s te rn District of North Carolina within fourteen (14) calendar days after the d a te the Amended Judgment of Conviction is filed or within fourteen (14) c a le n d a r days after any government appeal is filed, whichever is later. ORDER IT IS, THEREFORE, ORDERED as follows: 1. T h e Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, o r Correct Sentence by a Person in Federal Custody [Doc. 1] is hereby G R AN TE D in part as to the claim that trial counsel provided ineffective a s s is ta n c e of counsel by failing to file a notice of appeal and is hereby D E N IE D without prejudice as to all other claims. 2. The Judgment in a Criminal Case [Doc. 25] in United States v. Pope, C rim in a l Case No. 1:07cr46, is hereby VACATED and the Clerk of C o u rt is instructed to prepare an Amended Judgment in a Criminal Case with the same sentence and conditions as indicated on the original

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J u d g m e n t in a Criminal Case [Doc. 25]. 3. T h e Petitioner shall remain in the custody of the United States Attorney G e n e ra l and the Bureau of Prisons pending the entry of the amended J u d g m e n t. 4. T h e Petitioner may appeal the Amended Judgment in a Criminal Case a s explained in this Order.
Signed: May 3, 2010

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