Pippin v. USA

Filing 16

ORDER: After a thorough review of the Report and Recommendation [Doc. 13], the hearing transcript, and the parties filings, the Court ACCEPTS and ADOPTS the Report and Recommendation [Doc. 13] in its entirety. Petitioners objections [Doc. 14] to the Report and Recommendation are OVERRRULED. Accordingly, ground two of Petitioners 28 U.S.C. § 2255 motion [Doc. 1; Crim Doc. 52] is DENIED and DISMISSED. The Clerk is DIRECTED to close the civil file. Signed by District Judge R Leon Jordan on 9/29/21. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KEVIN M. PIPPIN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Nos. 3:15-CR-069
3:16-CV-681

MEMORANDUM AND ORDER
Kevin M. Pippin (“Petitioner”) filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, alleging two grounds of ineffective assistance by
his trial attorney. [Doc. 1]. His first claim for relief was denied and dismissed by this Court.
[Doc. 5]. The undersigned referred this matter to United States Magistrate Judge H. Bruce
Guyton for an evidentiary hearing on Petitioner’s second claim – whether his former counsel
failed to file a requested appeal. [Id.].
Magistrate Judge Guyton conducted an evidentiary hearing on June 3, 2021,
receiving testimony from Petitioner and Petitioner’s trial counsel, Paula Voss (“Attorney
Voss”). Following the hearing, Magistrate Judge Guyton allowed the parties to file
supplemental briefing. [Docs. 11 & 12]. On July 6, 2021, Magistrate Judge Guyton issued
his Report and Recommendation (“R&R”). [Doc. 13] Therein, the magistrate judge
determined that Petitioner failed to meet his burden to establish that Attorney Voss failed
to consult with him about filing an appeal. [Id. at 12]. Further, Petitioner’s testimony was

found to be inconsistent with his filings, and Magistrate Judge Guyton questioned the
credibility of Petitioner’s testimony. [Id.]. The magistrate judge also found that Attorney
Voss had appropriately consulted with Petitioner about filing an appeal. [Id. at 13]. In light
of these findings, Magistrate Judge Guyton recommended that the Court deny Petitioner’s
§ 2255 motion as to the second ground for relief.
Petitioner objected to the R&R, and the United States has responded to those
objections. [Docs. 14 & 15]. The matter is now ripe for determination. A transcript of
Magistrate Judge Guyton’s evidentiary hearing has been filed [Doc. 10] and has been
carefully reviewed by the Court. For the reasons that follow, the Court will adopt the Report
and Recommendation in full. Petitioner’s second ground for relief will be DENIED and
his § 2255 motion to vacate [Doc. 1] will be DISMISSED.
I.

BACKGROUND
The indictment in this case charged Petitioner with two counts related to possession

and distribution of child pornography, along with forfeiture allegations. [Criminal “Crim”
Doc. 8]. Petitioner, represented by Attorney Voss, pled guilty to the indictment without a
plea agreement on July 27, 2015. [Crim. Doc. 18]. The Court sentenced Petitioner to 124
months’ imprisonment on each count, to be served concurrently. [Crim. Doc. 48].
Petitioner did not file an appeal.
In December 2016, Petitioner filed this § 2255 motion, raising two grounds for
relief.1 [Doc. 1]. This memorandum, like Magistrate Judge Guyton’s Report and

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Petitioner filed the motion pro se. He was, however, represented by appointed counsel at the June
3 evidentiary hearing, and his objection to the R&R is filed by counsel.
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Recommendation, addresses only the second of those grounds.
II.

AUTHORITY
District courts are both statutorily and constitutionally required to conduct a de novo

review of a magistrate judge’s report and recommendation. See United States v. Shami, 754
F.2d 670, 672 (6th Cir. 1985). However, it is necessary only to review “those portions of
the report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b). District courts need not provide de novo review where objections to a
report and recommendation are frivolous, conclusive, or general. See Mira v. Marshall,
806 F.2d 636, 637 (6th Cir. 1986).
A petitioner alleging ineffective assistance must satisfy the two-part test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must establish, by
identifying specific acts or omissions, that counsel’s performance was deficient and that
counsel did not provide “reasonably effective assistance,” id., as measured by “prevailing
professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005). Courts must presume
that counsel’s assistance was effective, and petitioners bear the burden of showing
otherwise. See Mason v. Mitchell, 320 F.3d 604, 616–17 (6th Cir. 2003).
Second, a petitioner must demonstrate “a reasonable probability that, but for
[counsel’s acts or omissions], the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. at 691.
In the context of an appeal, there is a long-established rule “that a lawyer who
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disregards specific instructions from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000). In a case such as this, where Petitioner neither told his attorney to file an appeal
nor told her not to file an appeal, courts must evaluate the attorney's performance by asking
whether the attorney “consulted” with the defendant about the benefits and drawbacks of
filing an appeal. Id. at 478. Consultation occurs when the attorney “advis[es] the defendant
about the advantages and disadvantages of taking an appeal, and mak[es] a reasonable
effort to discover the defendant's wishes.” Id. If consultation has occurred, then “[c]ounsel
performs in a professionally unreasonable manner only by failing to follow the
defendant's express instructions with respect to an appeal.” Id. (emphasis added). If
counsel failed to consult with her client, then the court must address whether the failure to
consult constitutes deficient performance. See id.
III.

Analysis
As noted above, the second claim in Petitioner’s § 2255 motion alleges that trial

counsel was ineffective for failing to file an appeal after Petitioner requested her to do so.
[Doc. 1]. As also noted above, Magistrate Judge Guyton found that Petitioner did not
satisfy his burden to show that he specifically requested Attorney Voss to file an appeal
and founds that Attorney Voss appropriately consulted with Petitioner about filing an
appeal. [Doc. 13, p. 13].
The magistrate judge concluded,
Petitioner stated that following his sentencing hearing, Attorney Voss
discussed that he would potentially receive an increased sentence if
he filed an appeal. Petitioner testified that he then dropped the issue
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of an appeal because he was worried about receiving an increased
sentence. The risk of an increased sentence was of particular
importance in this case because both parties acknowledge that
Petitioner received a sentence that was well below the guideline range
set forth in the presentence report. Petitioner testified that Attorney
Voss reviewed the presentence report with him, while Attorney Voss
stated that she would discuss options about potential pleas, as well as
its advantages and disadvantages, after reviewing discovery. Further,
Attorney Voss stated that she likely met with Petitioner before his
change of plea hearing to review his potential options. Lastly,
Attorney Voss testified that her office would usually send a defendant
a closing letter and copy of the judgment following the imposition of
sentencing and that she did not recall Petitioner ever reaching out to
her following his sentencing hearing and requesting that she file an
appeal on his behalf. Therefore, the Court finds that Attorney Voss
appropriately consulted with Petitioner about the filing of an appeal.
[Doc. 13, p. 13] (internal citations omitted).
Petitioner, through counsel, filed three objections to the R&R:
1) the authority cited by Magistrate Judge Guyton, Regalado v. United
States, 334 F.3d 520 (6th Cir. 2003), is not controlling and does not
support the finding that Petitioner filed to specifically instruct Attorney
Voss to file an appeal as there was never a discussion between Attorney
Voss and Petitioner about an alternative to an appeal;
2) Magistrate Judge Guyton took “an entirely too expansive view of
‘consultation,’” as the record does not show that Petitioner and Attorney
Voss were constantly, or consistently, discussing an appeal; and
3) it was erroneous of Magistrate Judge Guyton not to consider the second
prong of Strickland as the court erred in determining that Petitioner failed
to establish the first prong of Strickland.
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[Doc. 14]. The United States responded that Magistrate Judge Guyton did not err in relying
on Regalado as “Petitioner and Ms. Voss discussed the possibility that Petitioner would
receive a longer sentence if an appeal was successful,” which amounts to an alternative to
appealing Petitioner’s sentence. Thus, the United States argues, consultation occurred, and
Petitioner did not specifically direct Attorney Voss to appeal following the consultation.
[Doc. 15]. The United States also argues that the discussion regarding the appeal does not
need to be constant or consistent as Petitioner contends since the law only requires that a
consultation occur. [Id.].
At the evidentiary hearing, Petitioner’s testimony regarding his conversation with
Attorney Voss about filing an appeal at his sentencing hearing differed from his pleadings.
In his § 2255 motion, Petitioner stated, “[i]mmediately following the Court’s
pronouncement of the sentence, Defendant turned to counsel and gave the directive:
‘Appeal.’ Counsel responded, ‘Okay.’ However, Defendant recently learned that she failed
to do so…” [Doc. 1, p. 2]. At the evidentiary hearing, Petitioner testified that after the
sentencing hearing he “asked her [Attorney Voss] about an appeal, and she said I could
get, I could possibly get more time, and so I just dropped it at that point ’cause I did not
want more time.” [Doc. 10, p. 10]. Petitioner could not recall whether he received a letter
from Attorney Voss after sentencing regarding filing an appeal but stated that he is sure
the undersigned informed him of his right to appeal his sentence. [Id.]. Petitioner further
testified that he did not have any other conversation with Attorney Voss about an appeal
other than the one at his sentencing hearing. He did not follow up with her about an appeal
in the month between his sentencing hearing and when he self-reported to begin his
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sentence because he “was scared of getting more time”. [Id., at 12-13, 20].
Attorney Voss also testified at the hearing regarding whether Petitioner directed her
to file an appeal. She testified that she “does not have a specific memory of [Petitioner
asking her to file an appeal],” but it is something she “certainly would” do if she had been
directed to do so by Petitioner. [Id., at 29]. Attorney Voss also testified that usually a
closing letter and a copy of the judgment is sent to defendants following sentencing, but
she does not recall Petitioner reaching out to her after the sentencing hearing about filing
an appeal. [Id., at 30].
As stated above, counsel’s performance might be deficient if, after consultation,
counsel neglects to file an appeal after specific instructions from a defendant to do so. Here,
the record supports Magistrate Judge Guyton’s conclusions that Attorney Voss consulted
with Petitioner about an appeal as Attorney Voss advised Petitioner that filing an appeal
would likely result in a higher sentence than he had received. Petitioner then decided not
to file an appeal because he was “scared of getting more time.” Further, Petitioner did not
specifically request that Attorney Voss file an appeal on his behalf following this
consultation and made no further efforts to inquire about appealing or filing an appeal pro
se.
The Court does not find Petitioner’s argument that the Court erred in relying on
Regalado as authority to be persuasive. Here, as in Regalado, Petitioner expressed a desire
to appeal, had a consultation with counsel about the effects of appealing his sentence, and
did not specifically direct his counsel to file an appeal. See Regalado, 334 F.3d 520. The
Sixth Circuit found that counsel had not performed deficiently in that case, and this Court
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finds the same here. As Petitioner has not met his burden to establish deficient performance
of counsel, the Court need not address the prejudice prong of the Strickland standard, and
Magistrate Judge Guyton did not err in declining to address it in the R&R. Strickland, 466
U.S. 668.
IV.

CONCLUSION
After a thorough review of the Report and Recommendation [Doc. 13], the hearing

transcript, and the parties’ filings, the Court ACCEPTS and ADOPTS the Report and
Recommendation [Doc. 13] in its entirety. Petitioner’s objections [Doc. 14] to the Report
and Recommendation are OVERRRULED. Accordingly, ground two of Petitioner’s 28
U.S.C. § 2255 motion [Doc. 1; Crim Doc. 52] is DENIED and DISMISSED.
The Clerk is DIRECTED to close the civil file.
IT IS SO ORDERED.
ENTER:

s/ Leon Jordan
United States District Judge

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