Jorgenson v. United States of America
ORDER adopting 33 Report and Recommendation; rejecting 36 Objection to Report and Recommendation; granting 49 Motion to Appoint Counsel ; denying 29 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 4/26/21. Mailed to Jorgenson. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA,
ORDER DENYING RESPONDENT’S
MOTION TO DISMISS AND
ADOPTING THE REPORT AND
Petitioner, Jason Jorgenson, filed a petition for writ of habeas corpus
under 28 U.S.C. § 2255. Docket 1. The petition was assigned to a United States
Magistrate Judge under 28 U.S.C. § 636(b)(1)(B), and this court’s October 16,
2014, standing order.
Respondent moves to dismiss Jorgenson’s petition under Federal Rule of
Civil Procedure 12(b)(6). Docket 29. The Magistrate Judge recommended the
dismissal of all claims except “Mr. Jorgenson’s claim that he asked counsel to
appeal and counsel failed to pursue an appeal on his behalf.” Docket 33 at 39.
Respondent objects to the report and recommendation. Docket 36.
Jorgenson pleaded guilty to possession of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1). CR. Docket 33 at 2. 1 At the change of
Jorgenson’s criminal case, United States v. Jorgenson, 4:17-cr-40043-KES,
will be cited as CR. Docket.
plea hearing, Jorgenson stated that no one had threatened him or forced him
to plead guilty. CR Docket 59 at 4-5. Jorgenson’s Pre-Sentence Report
calculated his United States Sentencing Guideline (U.S.S.G.) total offense level
as a 39 with a criminal history category of VI. CR. Docket 45 at 12, 17. As a
result, Jorgenson’s advisory guideline range was 360-480 months in custody.
Id. at 22. On August 2, 2018, Jorgenson was sentenced to 360 months of
imprisonment, which was the very bottom of the U.S.S.G. range. CR. Docket 61
at 14, 17. The court advised Jorgenson that he had waived his right to appeal
in his plea agreement but if he wanted to appeal, and if the issue was
preserved for appeal, then he needed to file a notice of appeal within 14 days
from the date of sentencing. Id. at 17.
Jorgenson claims that on August 4, 7, 8, 16, and 22, 2018, he called
counsel’s office “on numerous occasions requesting that counsel file an appeal
concerning the use of the dismissed charges, [and] counsel’s secretary
informed Petitioner that she would inform the counsel of Petitioner’s desire to
file an appeal.” Docket 9 at 12; Docket 12 at 7 (quoted material). “On each
occasion the Petitioner was informed by the secretary that counsel was not in
the office but that she had relayed the message to counsel about the appeal,
and that counsel had informed her that he would file the appeal as requested
by the Petitioner.” Docket 9 at 12.
The Magistrate Judge filed a report and recommendation that
recommended the dismissal of all claims except “Mr. Jorgenson’s claim that he
asked counsel to appeal and counsel failed to pursue an appeal on his behalf.”
Docket 33 at 39. Jorgenson was granted four extensions of time to file
objections to the Magistrate Judge’s report and recommendation, but he
ultimately did not file any objections. Respondent objected to the Magistrate
Judge’s recommendation of an evidentiary hearing regarding the alleged
ineffective assistance of counsel claim regarding appeal. Docket 36.
The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). 2 In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
The Magistrate Judge recommended that an evidentiary hearing be held
on Jorgenson’s allegation that counsel failed to file an appeal. Docket 33 at 39.
“[A]n attorney’s failure to file a notice of appeal after being instructed to do so
by his client constitutes ineffective assistance entitling petitioner to section
2255 relief, no inquiry into prejudice or likely success on appeal being
Respondent objected to the Magistrate Judge’s recommendation that an
evidentiary hearing be held on Jorgenson’s allegation that his counsel failed to
appeal. Docket 36 at 3. Jorgenson did not file an objection. Thus, this court
will only address the single issue to which respondent objected.
necessary.” Carnnahan v. United States, 778 Fed. Appx. 404, 405 (8th Cir.
2019) (quoting Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000)).
“This remains true ‘[e]ven if the client waived [his] right to appeal as part of a
plea agreement.’ ” Id. (first alteration in original) (quoting United States v.
Sellner, 773 F.3d 927, 930 (8th Cir. 2014)).
An evidentiary hearing does not need to be held if “the files and records
of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). “An inmate is not automatically entitled to a trip back to the
district court for an evidentiary hearing simply because he files an affidavit that
conflicts on its face with the sworn statements of his attorney.” Adams v.
United States, 869 F.3d 633, 635 (8th Cir. 2017). An evidentiary hearing may
be denied when the allegations “cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.” Thomas v. United States, 737 F.3d 1202, 1206-07 (8th Cir.
2013) (citation omitted). It is an abuse of discretion if a district court receives
conflicting affidavits and announces one is more credible than the other
without an evidentiary hearing. See Franco v. United States, 762 F.3d 761, 765
(8th Cir. 2014); see also Sellner, 773 F.3d at 930 (holding that a defendant’s
“written statement is just as credible on its face as [an] attorney’s affidavit.”);
Koskela v. United States, 235 F.3d 1148, 1149 (8th Cir. 2001) (holding that the
district court abused its discretion by dismissing the petitioner’s
§ 2255 motions without an evidentiary hearing when the petitioner attested
that he told his attorney to subpoena witnesses and the attorney submitted an
affidavit denying that the petitioner made such a request).
Here, Jorgenson filed a written statement alleging that he contacted
counsel’s office on August 4, 7, 8, 16, and 22, 2018, with reference to his
appeal. Docket 9 at 12. “On each occasion the Petitioner was informed by the
secretary that counsel was not in the office but that she had relayed the
message to counsel about the appeal, and that counsel had informed her that
he would file the appeal as requested by the Petitioner.” Id. In the report and
recommendation, the Magistrate Judge recommended that an evidentiary
hearing be held, but stated that
[i]f detention facility records showed counsel visited Mr. Jorgenson
on August 20 in person to explain it was too late to appeal, this
would cast substantial doubt on Mr. Jorgenson’s claim he later
telephoned counsel on August 22 to request that counsel file an
appeal. Should evidence be presented that the facilit[ies] in which
Mr. Jorgenson resided during August 2-16, 2018, show he made no
phone calls to counsel’s office during those dates and/or that
counsel visited Mr. Jorgenson on August 20, the court’s conclusion
could be different.
Docket 33 at 38.
Respondent asserts that counsel met with Jorgenson on August 20,
2018, and filed counsel’s notes regarding the meeting. Docket 36 at 3.
Respondent claims that Jorgenson’s assertions that he contacted counsel on
August 4, 7, 8, 16, and 22, 2018, are contradicted by the record and inherently
incredible because “counsel had an appointment at the jail with Jorgenson on
August 20 and counsel’s notes confirm[ed] the visit[.]” Docket 36 at 4-5.
Respondent argues that
[t]here would be no reason for Jorgenson to have attempted to
contact counsel again on August 22 about an appeal when counsel
went to explain to him on August 20 that the appeal deadline had
lapsed. The allegation that Jorgenson called counsel’s office on
August 22 is inherently incredible and makes his entire allegation
that he called counsel’s office on those dates inherently incredible.
Docket 36 at 5. Respondent’s argument that there was no reason for Jorgenson
to call on August 22, 2018, after his counsel allegedly met with him on August
20, 2018, does not address or contradict Jorgenson’s statements that he made
the calls on August 4, 7, 8, and 16, 2018. Because Jorgenson was sentenced
on August 2, 2018, the time frame from August 2-16, 2018, was critical
regarding Jorgeson’s appeal.
Jorgenson’s allegations are not “contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.” Thomas, 737 F.3d at
1206-07. This court cannot rule on the credibility of these statements before
conducting an evidentiary hearing. Thus, respondent’s motion to dismiss is
denied and this court adopts the Magistrate Judge’s recommendation to
conduct an evidentiary hearing on whether counsel failed to file an appeal after
Jorgenson allegedly directed him to do so.
Motion for Appointment of Counsel
Jorgenson moves for the appointment of counsel. Docket 49. An
evidentiary hearing carries with it an automatic right to the appointment of
counsel. See Rule 8(c) of the § 2255 Rules (“If an evidentiary hearing is
warranted, the judge must appoint an attorney to represent a moving party
who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”); see also
Roney v. United States, 205 F.3d 1061, 1062 (8th Cir. 2000) (“district court's
failure to appoint counsel to represent § 2255 movant in evidentiary hearing
violated Rule 8(c) of the [§ 2255 Rules]”). Jorgenson’s motion (Docket 49) is
Thus, it is ORDERED
1. The Magistrate Judge’s report and recommendation (Docket 33) is
adopted and respondent’s objection (Docket 36) is rejected.
2. Respondent’s motion to dismiss (Docket 29) is denied.
3. That Jorgenson’s motion for the appointment of counsel (Docket 49) is
granted. This matter is referred back to Magistrate Judge Duffy for
appointment of counsel and to conduct an evidentiary hearing.
Dated April 26, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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