Sparks v. USA
Filing
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ORDER granting Motion to Vacate, Set Aside or Correct Sentence (2255) as to petr's claim for ineffective assistance of counsel based on counsel's failure to file a notice of appeal on petr's behalf. Court shall amend the jgmt consistent with this order so that petr may file a Notice of Appeal to the Fourth Circuit Court of Appeals. Petr's remaining claims are dismissed without prejudice to petr to refile the petn after the Fourth Circuit has adjudicated petr's claims on appeal. Signed by District Judge Richard Voorhees on 1/7/2015. (Pro se litigant served by US Mail.)(cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14-cv-156-RLV
(5:11-cr-73-RLV-DCK-31)
JEFFREY NATHAN SPARKS,
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)
Petitioner,
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)
vs.
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)
UNITED STATES OF AMERICA,
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Respondent.
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__________________________________________)
ORDER
THIS MATTER is before the Court on Petitioner’s Motion under 28, United States
Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.
(Doc. No. 1).
Petitioner Jeffrey Nathan Sparks moves to vacate his conviction and sentence under 28
U.S.C. § 2255, arguing, in part, that his trial counsel, Marcos Roberts, failed to file a notice of
appeal of this Court’s judgment, notwithstanding Petitioner’s request that he do so. Respondent
filed a Response on December 29, 2014. (Doc. No. 3). Respondent concedes in the Response
that this Court should grant Petitioner’s motion to vacate, in part; enter an amended judgment
permitting Petition to file a timely notice of appeal; and dismiss Petitioner’s remaining claims
without prejudice.
I.
BACKGROUND
On June 19, 2012, Petitioner Jeffrey Nathan Sparks and numerous other individuals were
charged by the Grand Jury for the Western District of North Carolina in a Superseding Bill of
Indictment with violations of 18 U.S.C. §§ 2, 924(c), and 21 U.S.C. §§ 802, 841, 843, 846, 856
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and 858. (Crim. Case No. 5:11cr73, Doc. No. 198: Superseding Bill of Indictment).
Specifically, Petitioner was charged with conspiracy to distribute, possess with intent to
distribute, and manufacture methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A) (Count One), and possession of pseudoephedrine, in violation of 21 U.S.C. §
841(c)(2) and 802(34)(K) (Count Two). On February 8, 2013, Petitioner pled guilty, pursuant to
a plea agreement, to Count One. (Id., Doc. No. 353: Plea Agreement; Doc. No. 373: Acceptance
and Entry of Guilty Plea). On December 4, 2013, this Court conducted Petitioner’s sentencing
hearing, during which the Court sentenced Petitioner to 63 months’ imprisonment, to be
followed by five years’ supervised release, and ordered that restitution be paid, jointly and
severally, in the amount of $22,681.20. (Id., Doc. No. 648: Judgment).
This Court entered judgment on December 13, 2013, and Petitioner did not appeal. (Id.).
Rather, on September 26, 2014, he filed the instant motion to vacate, bringing two grounds for
relief. Under Ground One, Petitioner asserts the following claims of ineffective assistance of
counsel: (1) counsel failed to provide Petitioner with the information necessary for Petitioner to
make a knowing decision concerning waiver of his right to a jury trial and signing the plea
agreement; (2) counsel failed to object to and fight a sentencing enhancement based on
possession of a dangerous weapon, thus denying Petitioner the opportunity to take advantage of
certain programs offered by the Bureau of Prisons, and (3) counsel neglected to file a notice of
appeal despite Petitioner’s request that he do so. Under Ground Two, Petitioner appears to raise
a claim of erroneous sentence enhancement. Finally, on November 24, 2014, Petitioner’s
sentence was further reduced, pursuant to U.S.S.G. Amendment 782, to 51 months’
imprisonment. (Id., Doc. No. 815: Order Reducing Sentence).
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II.
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing
courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner is entitled to any
relief. After having considered the record in this matter and the Government’s Response, the
Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
III.
DISCUSSION
Here, Petitioner alleges that after his sentencing, he instructed counsel to file an appeal on
his behalf but counsel failed to do so. See (Doc. No. 1-1 at 16). Where a defendant
unequivocally instructs an attorney to file a timely notice of appeal, the attorney’s failure to file
the appeal is per se ineffective assistance of counsel. Prejudice to the defendant is presumed
regardless of the merits of the appeal or waiver of appellate rights. See Evitts v. Lucey, 469 U.S.
387, 391-405 (1985); United States v. Poindexter, 492 F.3d 263, 269 (4th Cir. 2007); United
States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Therefore, where a court is presented with
conflicting verified statements on the issue of whether a defendant unequivocally requested that
his counsel file a notice of appeal, the Fourth Circuit has directed that the court conduct an
evidentiary hearing to resolve that question of fact. See Poindexter, 492 F.3d at 273. If, after
conducting the evidentiary hearing, the Court determines that the petitioner did not
unequivocally request that counsel file a notice of appeal, the petitioner’s motion should be
denied. See id.
In its Response to Petitioner’s motion to vacate, the Government asserts that even if it
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were to file a response supported by an affidavit in which Petitioner’s former attorney denies that
Petitioner requested that he file an appeal, at a minimum a factual dispute would still exist over
whether Petitioner requested his counsel to file a direct appeal. Respondent contends, therefore,
that the appropriate remedy is for the Court to vacate the original judgment and enter a new
judgment from which an appeal may be taken. Respondent contends, additionally, that
Petitioner’s remaining claims should be dismissed without prejudice to his right to file another
Section 2255 motion, if necessary, after a direct appeal. See United States v. Killian, 22 Fed.
App’x 300, 301 (4th Cir. 2011) (“Because [Petitioner] has never had a direct appeal, . . . taking
further action on [his] motion beyond granting [the] Peak claim [would be] inappropriate.”).
The Court agrees with Respondent that the Court’s resources would best be served by
granting the motion to vacate to the extent that Petitioner brings a claim for ineffective assistance
of counsel based on counsel’s failure to file a notice of appeal on Petitioner’s behalf after
Petitioner instructed him to do so. The Court will, therefore, vacate the original judgment and
enter a new judgment from which an appeal may be taken, and the Court will dismiss
Petitioner’s remaining claims without prejudice.
Petitioner is hereby advised that he has the right to appeal his criminal case to the United
States Fourth Circuit Court of Appeals. Should Petitioner choose to appeal, he must file a Notice
of Appeal with the Clerk of Court for the United States District Court for the Western District of
North Carolina within 14 (fourteen) calendar days after the date the Amended Judgment of
conviction is filed or within 14 (fourteen) calendar days after any government appeal is filed,
whichever is later. FED. R. APP. P. 4(b)(1)(A).
IV.
CONCLUSION
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For the reasons stated herein, the Court grants Petitioner’s Motion to Vacate with respect
to his claim for ineffective assistance of counsel based on counsel’s failure to file a notice of
appeal on Petitioner’s behalf. The Court will amend the judgment so that Petitioner can file a
timely notice of appeal with the Fourth Circuit Court of Appeals. The Court dismisses without
prejudice the remaining claims in the petition.
IT IS, THEREFORE, ORDERED that:
1. The petition is GRANTED as to Petitioner’s claim for ineffective assistance of
counsel based on counsel’s failure to file a notice of appeal on Petitioner’s behalf.
2. The Court shall amend the judgment consistent with this Order, so that Petitioner may
file a Notice of Appeal to the Fourth Circuit Court of Appeals.
3. Petitioner’s remaining claims are dismissed without prejudice to Petitioner to refile
the petition after the Fourth Circuit has adjudicated Petitioner’s claims on appeal.
Signed: January 7, 2015
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