Ligon v. United States of America

Filing 19

MEMORANDUM. Signed by District Judge Kevin H. Sharp on 6/12/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT LIGON
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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No. 3:13-0698
Judge Sharp

M E M O R A N D U M
The petitioner, proceeding pro se, is an inmate at the Federal
Correctional Complex in Yazoo City, Mississippi. He brings this
action pursuant to 28 U.S.C. § 2255 against the United States,
asking the Court to vacate, set aside or correct his sentence.
On August 20, 2012, the petitioner pled guilty to conspiracy
to distribute and possess with intent to distribute 500 grams or
more of cocaine and 280 grams or more of crack cocaine. United
States of America v. Robert Ligon, Criminal No.3:11-00012 (M.D.
Tenn.); Docket Entry No.1154. He also pled guilty to being a
convicted felon in possession of a firearm. United States of
America v. Robert Ligon, Criminal No.3:12-00167 (M.D. Tenn.).
For the conspiracy conviction, the petitioner received a
sentence of 180 months in prison, to be followed by five years of
supervised release. The firearm conviction brought the petitioner

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a concurrent sentence of 120 months in prison, to be followed by
three years of supervised release. Criminal No.3:11-00012; Docket
Entry No.1155.
There was no direct appeal of the convictions taken by the
petitioner. However, on July 15, 2013, he filed the instant Motion
to Vacate, Set Aside or Correct Sentence (Docket Entry No.1).
In the Motion, the petitioner asserts two claims for relief.
These claims include :
1)

the ineffectiveness of counsel for
failing to file a requested appeal;1
and

2)

petitioner is entitled to re-sentencing
under 18 U.S.C. § 3582.

Upon its receipt, the Court conducted a preliminary review of
petitioner’s Motion and found that it stated a colorable claim for
relief. Accordingly, by an order (Docket Entry No.5) entered
November 15, 2013, the United States Attorney for this judicial
district was directed to file an answer, plead or otherwise respond
to the Motion. Rule 4(b), Rules --- § 2255 Cases.
Presently

before

the

Court

is

the

government’s

Response

(Docket Entry No.13) to the Motion, to which the petitioner has
offered no reply.
The petitioner contends that the Fair Sentencing Act of 2010
entitles him to a reduction in his conspiracy sentence (Claim
1

Petitioner was represented by “Bo” Taylor, a member of the
Davidson County Bar.
2

No.2). This claim has been previously raised and rejected by the
Court. Criminal No.3:11-00012; Docket Entry No.1801. In any event,
the petitioner waived in his plea agreement any § 2255 challenge to
the sentences. Id.; Docket Entry No.1154 at pg.22 (“Defendant also
knowingly waives the right to challenge the sentence imposed in any
collateral attack, including, but not limited to, a motion brought
pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. §
3582(c)”). Therefore, this claim has no merit.
The petitioner further alleges that he asked his attorney to
file an appeal of the convictions. Counsel failed to do so.
Plaintiff contends that this constitutes a denial of his right to
the effective assistance of counsel (Claim No.1).
The Sixth Amendment provides that a criminal defendant is
entitled

to

the

effective

assistance

of

counsel.

McMann

v.

Richardson, 379 U.S. 759, 771 (1970). To establish a violation of
this right, the petitioner bears the burden of pleading and proving
that his attorney’s performance was in some way deficient and that
the

defense

was

prejudiced

as

a

result

of

the

deficiency.

Strickland v. Washington, 466 U.S. 668 (1984). Prejudice arises
when there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. Id.
at 466 U.S. 694. When considering such a claim, counsel is strongly
presumed

to

have

rendered

adequate

assistance

and

made

all

significant decisions in the exercise of reasonable professional

3

judgment. Mallett v. United States, 334 F.3d 491, 497 (6th Cir.
2003).
A

lawyer

who

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). As part of the plea agreement, though, the petitioner
waived his right to appeal any issue bearing on the determination
of his guilt or the sentences imposed upon him. Criminal No.3:1100012; Docket Entry No.1154 at pgs.21-22. It would appear at first
blush, therefore, that counsel could not have been deficient for
failing to file an appeal that the petitioner had waived in a plea
agreement.2
Nevertheless, the Sixth Circuit has recently held to the
contrary. In Campbell v. United States of America, 686 F.3d 353 (6th
Cir.2012), the Sixth Circuit stated “that even when a defendant
waives all or most of his right to appeal, an attorney who fails to
file an appeal that a criminal defendant explicitly requests has,
as a matter of law, provided ineffective assistance of counsel that
entitles the defendant to relief in the form of a delayed appeal.”
Id. at pg.360. As a consequence, if the petitioner did in fact
instruct his attorney to file an appeal and counsel neglected to do

2

The appellate waiver was not absolute. The petitioner
reserved the right to raise on appeal claims of involuntariness,
prosecutorial misconduct and ineffective assistance of counsel.
Criminal No.3:11-00012; Docket Entry No.1154 at pg.22.
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so, counsel’s failure may have denied the petitioner the effective
assistance of counsel.
Petitioner has pled that he instructed counsel to file an
appeal. The respondent has provided an Affidavit (Docket Entry
No.14-1) from petitioner’s attorney in which counsel states that he
has no recollection or record of the petitioner ever asking him to
file an appeal. Because the resolution of this factual dispute is
pivotal to petitioner’s claim for relief, the Court must conduct an
evidentiary hearing to determine if the petitioner did in fact
express a desire for an appeal as he now asserts. Campbell, supra
at pg.360.
Accordingly, an order shall be entered referring this action
to the Magistrate Judge with instructions to conduct the requisite
evidentiary hearing.

____________________________
Kevin H. Sharp
United States District Judge

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