Ligon v. United States of America
Filing
51
REPORT AND RECOMMENDATION re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Robert Ligon. The Magistrate Judge recommends that the instant Petition be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge E. Clifton Knowles on 7/2/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT LIGON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
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CASE NO. 3:13-00698
JUDGE SHARP/KNOWLES
Respondent.
REPORT AND RECOMMENDATION
This matter is before the Court following an Evidentiary Hearing held on October 15,
2014. Judge Sharp previously referred this federal habeas action to the undersigned “with
instructions to conduct an Evidentiary Hearing to determine whether the petitioner did in fact ask
his attorney to file an appeal.” Docket No. 20. Judge Sharp’s Order further provided, “Based
upon the Magistrate Judge’s findings, a recommendation shall be made as to the disposition of
petitioner’s ineffective assistance claim.” Id.
Judge Sharp has previously set forth the facts of Petitioner’s underlying criminal cases as
follows:
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 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.
Docket No. 19, p. 1-2.
The Petitioner agreed to plead guilty to these charges, pursuant to a written plea
agreement under Fed. R. Crim. P. 11(c)(1)(C). Case No. 3:11-cr-0012, Docket No. 1154. As
part of the agreement, the Government agreed not to file an Information under 21 U.S.C. § 851,
which would have increased Ligon’s mandatory minimum sentence to 20 years imprisonment
and 10 years supervised release. Docket No. 37, p. 70-71.
On August 20, 2012, at the request of the Petitioner, Judge Wiseman conducted a joint
plea and sentencing hearing. During the hearing, Judge Wiseman discussed the terms of the
agreement and the appellate-waiver provision with the Petitioner. Docket No. 3:11-cr-00012,
Docket No. 1983, p. 12. Petitioner acknowledged that he understood and agreed to the terms of
the plea agreement, signed the plea agreement, and was sentenced based on those terms. The
written plea agreement executed by Defendant states in part:
Waiver of Appellate Rights
18. Regarding the issue of guilt, defendant hereby waives all (i)
rights to appeal any issue bearing on the determination of whether
he is guilty of the crime to which he is agreeing to plead guilty; and
(ii) trial rights that might have been available if he exercised his
right to go to trial. Regarding sentencing, Defendant is aware that
18 U.S.C. § 3742 generally affords a defendant the right to appeal
the sentence imposed. Acknowledging this, defendant knowingly
waives the right to appeal any sentence of a term of 180 months
imprisonment and a five year term of supervised release as to
Count One of case 3:11-00012, and a concurrent term of ten years
imprisonment and three years supervised release as to the charge in
the information in Case 3:12-00167 as agreed herein. . . .
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However, no waiver of the right to appeal, or to challenge the
adjudication of guilt or the sentence imposed in any collateral
attack, shall apply to a claim of involuntariness, prosecutorial
misconduct, or ineffective assistance of counsel.
Docket No. 1154, p. 21-22.
On July 15, 2013, Petitioner filed a pro se petition for habeas corpus relief pursuant to 28
U.S.C. § 2255. Docket No. 1. Defendant asserted in part that his counsel in the underlying
criminal action rendered ineffective assistance of counsel because he failed to file a notice of
appeal after Defendant had asked him to do so.1 Docket No. 1, p. 2.
The Court held the evidentiary hearing on October 15, 2014, and a transcript of the
proceedings has been filed. Docket No. 37. Two witnesses testified at the hearing: Petitioner
Robert Ligon and his former counsel Roger “Bo” Taylor.
Mr. Ligon testified that Mr. Taylor had come to see him “a few times” around the end of
July 2012, when Mr. Ligon was in custody in Bowling Green. Docket No. 37, p. 15-16. During
that period of time, Mr. Taylor and AUSA Sunny Koshy were discussing the terms of the
possible plea agreement. Mr. Taylor told Mr. Ligon that the proposal from Mr. Koshy was that if
Mr. Ligon “was assigned for 15 years that [he] would not be charged with the guns . . . .” Mr.
Ligon told him, “if you can get me that plea deal, I’ll take 15 years and I’ll plead out as soon as
possible.” Id., p. 16-17. Mr. Ligon was concerned about pleading to the gun charge because he
was afraid that could be detrimental to his attempts to get into BOP programs. Docket No. 37, p.
77-78.
At some point around August 10, Mr. Ligon received a letter from Mr. Taylor stating that
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He also raised a sentencing claim, which Judge Sharp has previously rejected. Docket
Nos. 19, 20.
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“the guns would not be dropped.” Id., p. 18. When Mr. Ligon was transported to this Court on
August 20, 2013, for his plea and sentencing, Mr. Taylor again told him that Mr. Koshy “was not
dropping the guns.” Id., p. 19. He discussed this point with Mr. Taylor on August 20. Id. Mr.
Taylor told him there was really nothing they could do about that but that Mr. Ligon’s sentence
would still be only 15 years. Id., p. 19, 21.
Shortly before Mr. Ligon pled guilty and was sentenced by Judge Wiseman on August 20,
he appeared before the undersigned for a Waiver of Indictment by the Grand Jury on the gun
charges. Case No. 3:12-00167, Docket No. 6. Mr. Ligon testified that he had come into the
undersigned’s courtroom prior to being taken to Judge Wiseman’s courtroom. Docket No. 37, p.
14. He testified that he was in the undersigned’s courtroom when he directed Mr. Taylor to file
an appeal. Id., p. 26. In other words, Mr. Ligon testified that the only time he instructed Mr.
Taylor to file a Notice of Appeal was before he pled guilty pursuant to his plea agreement.
Mr. Ligon knew, at the time he pled guilty, that the plea agreement did not drop the gun
charge. Id., p. 19, 21. He testified that getting rid of the gun charge was “a substantial reason for
[his] entering into the plea.” Id., p. 21. At the same time, however, he clearly agreed that he
knew, before he entered into the plea agreement, the gun charge would not be dropped. Id., p.
19. He also knew that the Government, instead of charging him with being a convicted felon in
possession of a firearm, could have charged him with the more serious offense of possession of a
firearm in furtherance of a drug trafficking crime, pursuant to 18 U.S.C. § 924(c). Docket No.
37, p. 41. He further knew that any sentence he might receive under § 924(c) would be worse
than a sentence for simply being a convicted felon in possession of a firearm, because the 924(c)
sentence would have to run consecutively to any term he might receive for the drug conspiracy
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charge. Id., p. 42.
Mr. Ligon could have had a delay of three or four months between his plea of guilty and
his sentencing. Id., p. 36. He asked, however, if he could go ahead and do the sentencing the
same day as the plea agreement. Id., p. 37. He did this partly so he could get out of local custody
and move on to federal custody. Id., p. 37.
In early October, after Mr. Ligon had been transferred to federal prison, he wrote the
Clerk of this Court asking for a docket sheet. Id., p. 29. He realized then that an appeal had not
been filed. Id., p. 29-30. He testified that he “eventually” filed the instant action (on July 15,
2013). Id., p. 30, Docket No. 1, p. 1.
Mr. Taylor testified that at the time he represented Mr. Ligon, he had been practicing for
about 20 years in federal court as a criminal defense lawyer. Id., p. 66-67. He has previously
filed Notices of Appeal in a variety of cases. Id. He was aware that a person could appeal, even
if he pled guilty. Id., p. 68. He testified that, with regard to the parts of his file he could locate,
there was no indication of a request to file a Notice of Appeal. Id., p. 68. He does not recall
Petitioner asking him to file a Notice of Appeal after he was sentenced. Id., p. 69. If Petitioner
had done so, he would have filed the Notice of Appeal. Id. There would have been no detriment
to him in simply filing the Notice. Id. If Petitioner had asked him to file a Notice of Appeal, he
would have explained to Petitioner what the waiver meant and the situation that Petitioner was in
regarding the waiver, but he does not recall that “at all.” Id., p. 69-70.
Based upon the proof adduced at the Evidentiary Hearing, the Court finds as a fact that
Petitioner did not ask his attorney to file an appeal. The Court so finds for several reasons.
First, the undersigned closely observed the witnesses as they testified, and the Court finds
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that Petitioner was not a credible witness. There were significant inconsistencies in Petitioner’s
prior written statements and statements he made at the hearing.
At the hearing, Petitioner testified that he had asked Mr. Taylor to file a Notice of Appeal
only once, while he was in the undersigned’s courtroom for a Waiver of Indictment on the gun
charges on August 20, 2012, shortly before he pled guilty before Judge Wiseman. Docket No.
37, p. 26. When he told Mr. Taylor to file a direct appeal, he wanted to appeal the issue that the
plea agreement still provided that Mr. Ligon was charged with the guns, and he “wanted to
address [that] on appeal.” Id., p. 28.
Petitioner stated in his § 2255 petition, however, “Defendant after sentencing hearing
requested counsel to file a notice of appeal.” Docket No. 1, p. 1 (emphasis added). Additionally,
while Petitioner was proceeding pro se, he filed a “Motion for summary judgment and to dismiss
the government’s response as moot based on it’s [sic] untimeliness.” Docket No. 8. In the
Certificate of Service attached to that Motion, Plaintiff stated as follows:
I Robert Ligon do certify that the following motion was mailed via
United States pre-paid mail at the following location and I swear
under penalty of perjury pursuant to 28 U.S.C. § 1746 that I
advised my counsel to file a notice of Appeal when he came to visit
me to discuss my plea done this 8 day of January 2014.
Docket No. 8, p. 2.
Thus, Petitioner has told three different stories about when he directed Mr. Taylor to file a
Notice of Appeal.
Second, Petitioner’s position that he asked Mr. Taylor to file a Notice of Appeal simply
does not make sense. Mr. Ligon testified that he wanted to avoid pleading guilty to the gun
offense. Before the sentencing hearing, however, Mr. Taylor had told Petitioner, both orally and
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in writing, that the Government would not agree to drop the gun charges. Petitioner knew this
before he pled guilty. He also knew that he was getting a good deal because he would be
sentenced to only 180 months total for both the drug conspiracy charge and the felon in
possession charge because those sentences would run concurrently. Had he not taken the deal,
the Government could have charged him under § 924(c), and, upon conviction, he would have
received a mandatory minimum sentence of 20 years. He was, in fact, so eager to take the deal
offered by the Government that he requested to have his guilty plea and sentencing on the same
day. If Petitioner had, in fact, wanted the gun charge to be dropped, it makes no sense that he
would have pled guilty to it.
Third, Petitioner testified that he learned in approximately October 2012, that Mr. Taylor
had not filed a Notice of Appeal. At that point, however, he did not contact Mr. Taylor to discuss
the appeal with him. In fact, he waited approximately 9 months before he filed the instant
Petition. Petitioner’s testimony in this regard is not credible.
On the other hand, Mr. Taylor was a credible witness. At the time he represented Mr.
Ligon, he had 20 years of experience as a criminal defense lawyer in federal court. He testified
that, if Mr. Ligon had requested that he file an appeal, he would have done so. There would have
been no downside to Mr. Taylor in filing the Notice of Appeal. While he cannot specifically
recall whether Mr. Ligon ever asked him to file a Notice of Appeal, the Court believes that he
would recall discussing this issue with Mr. Ligon, because he testified that he had never
previously been asked to file a Notice of Appeal in a case where the plea agreement waived
Defendant’s right to appeal.
For the foregoing reasons, the Court finds as a fact that Petitioner did not ask or instruct
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his attorney to file a Notice of Appeal.
The Court now turns to the second directive in Judge Sharp’s Order concerning the
disposition of Petitioner’s ineffective assistance claim. Petitioner has claimed that he received
ineffective assistance of counsel because he told his attorney to file a Notice of Appeal but his
attorney did not do so. Judge Sharp’s Order is clear that the undersigned’s recommendation is to
be “[b]ased upon” the undersigned’s finding on the factual issue discussed above.
The Court can and must base its recommendation on the controlling authority of
Campbell v. United States, 686 F.3d 353 (6th Cir. 2012). In Campbell, defendant entered into a
plea agreement, which partially waived his right to appeal his conviction and sentence. In a later
proceeding to vacate his sentence pursuant to 28 U.S.C. § 2255, he argued that his attorney’s
failure to file an appeal despite his “express instruction to do so” constituted ineffective
assistance of counsel. Id., p. 355. The district court in Campbell did not hold an evidentiary
hearing concerning whether Mr. Campbell made the request that his attorney appeal his
conviction. The government refused to concede that such an instruction was given, arguing that
that fact was irrelevant to the ineffective-assistance question. Id., p. 358 n.3. The Campbell
Court remanded that case for an evidentiary hearing to determine whether petitioner had directed
his attorney to file a Notice of Appeal. The Campbell Court stated in relevant part:
If the district court finds that [petitioner directed his attorney to file
a notice of appeal], his attorney’s failure to file an appeal
constituted ineffective assistance of counsel and [petitioner] is
entitled to file a delayed appeal. If, on the other hand, the district
court determines that Campbell provided no such instruction
Campbell is not entitled to any further relief.
686 F.3d at 360.
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As set forth above, this Court has determined that Petitioner did not give any instruction
to his counsel to appeal his guilty plea. Under those circumstances, Petitioner is not entitled to
relief in the form of a delayed appeal.
For the foregoing reasons, the undersigned recommends that the instant Petition be
DISMISSED WITH PREJUDICE.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
E. Clifton Knowles
United States Magistrate Judge
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