Alley v. United States of America

Filing 34

ORDER ADOPTING 32 REPORT AND RECOMMENDATION AND GRANTING PETITIONER DELAYED APPEAL Report and Recommendations. Signed by Chief Judge J. Daniel Breen on 1/5/2017. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
RICHARD E. ALLEY,
Petitioner,
v.

No. 16-1014

UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
PETITIONER DELAYED APPEAL
______________________________________________________________________________
Before the Court is the January 25, 2016, pro se petition of Richard E. Alley, pursuant to
28 U.S.C. § 2255, to vacate, set aside or correct his sentence (the “Petition”). (Docket Entry
“D.E.” 1.) On January 21, 2014, a federal grand jury, in Case No. 1:14-10008, returned a multicount indictment against Petitioner and others, charging them with various drug offenses.
Attorney A. Russell Larson was appointed to represent Alley on January 28, 2014. (Case No.
1:14-10008, D.E. 36.) On July 21, 2015, Petitioner entered a guilty plea in which he waived his
right to appeal. (Case No. 1:14-10008, D.E. 579.) At a hearing on October 21, 2015, he was
sentenced to a total of 144 months incarceration. (Case No. 1:14-10008, D.E. 609.) No notice of
appeal was filed.
In the Petition, Alley asserted that, at the conclusion of the sentencing hearing, he
requested that Larson file a notice of appeal, notwithstanding the waiver, and counsel verbally
agreed to do so. His lawyer’s failure to appeal his conviction, argued the Petitioner, amounted to
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). In
responding to the Petition, the Government submitted Larson’s affidavit, in which he stated that

he could locate no evidence of an oral or written request by Alley following the sentencing
hearing that an appeal be filed.
Under such circumstances, courts in this Circuit are to conduct an evidentiary hearing to
resolve the factual dispute. See Campbell v. United States, 686 F.3d 353, 359-60 (6th Cir. 2012).
Accordingly, on July 13, 2016, the undersigned referred this matter to the United States
magistrate judge for the purposes of taking testimony and preparing proposed findings of fact
and recommendations for disposition. (D.E. 13.) Following a hearing on November 23, 2016, in
which Petitioner was represented by appointed counsel, Magistrate Judge Edward G. Bryant
entered a report and recommendation on December 5, 2016, finding that Alley requested Larson
file a notice of appeal and that his attorney’s failure to do so constituted ineffective assistance of
counsel as a matter of law. (D.E. 32.) He recommended that Petitioner be granted a delayed
appeal. (Id.)
As no objections to the magistrate judge’s report and recommendation have been filed
and the time for such objections has expired, and upon review of the record, the report and
recommendation is ADOPTED and Petitioner is hereby granted a delayed appeal in Case No.
1:14-10008. See Campbell, 686 F.3d at 360 (“We therefore hold 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.”).

The Petition is

GRANTED.1 Further, the judgment previously entered in Case No. 1:14-10008 on October 22,
2015, is VACATED and SET ASIDE. An amended judgment will be entered for the purpose of
permitting Alley to file a delayed appeal. Upon filing of the amended judgment, the Clerk of
1

In light of the Court’s grant of the Petition, Alley’s pending motion for due process, filed
February 8, 2016 (D.E. 3), is DENIED as moot.
2

Court is DIRECTED to file a notice of appeal on behalf of the Petitioner. Based on Alley’s
financial status as noted by the magistrate judge in appointing counsel to represent him at the
evidentiary hearing (see D.E. 17), Petitioner qualifies for appointment of counsel to prosecute his
appeal. The Court will, however, defer to the United States Court of Appeals for the Sixth
Circuit to appoint counsel in connection with the appeal. Considering this Court’s finding that
Larson’s representation was ineffective, it is not recommended that he receive such appointment.
IT IS SO ORDERED this 5th day of January 2017.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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