Gant v. United States of America
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION; ORDER of Dismissal; ORDER denying a Certificate of Appealability; ORDER certifying Appeal Not Taken in Good Faith; and ORDER denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Chief Judge Jon Phipps McCalla on 1/11/11. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
RICARDO ALKEALOHA GANT,
Defendant.
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Cv. No. 06-2160-JPM-cgc
Cr. No. 03-20369-1-JPM
ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER OF DISMISSAL
ORDER DENYING A CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On March 14, 2006, Defendant Ricardo Alkealoha Gant,
Bureau of Prisons inmate registration number 19226-076, filed a pro
se motion pursuant to 28 U.S.C. § 2255 that asserted that his trial
counsel rendered ineffective assistance, in violation of the Sixth
Amendment, by (i) failing fully to advise him concerning the
decision to plead guilty and to ensure that the guilty plea was
intelligent and voluntary; (ii) failing to object to certain
sentence enhancements that were neither found by a jury beyond a
reasonable doubt nor admitted in the Plea Agreement; and (iii)
failing to object to the use of erroneous information used to
sentence him on Count 49. (ECF No. 1.) The Court issued an order on
April 14, 2006, directing the Government to respond to the motion.
(ECF No. 2.) On June 5, 2006, the Government filed its Response to
Petitioner’s Motion Pursuant to 28 U.S.C. § 2255 (ECF No. 8),
accompanied by a motion for leave to supplement the response when
the transcript of the change of change of plea hearing was received
(ECF No. 9). On June 6, 2006, the Court granted the Government
leave to supplement its response. (ECF No. 11.) The Government
filed its Supplemental Response on June 12, 2006. (ECF No. 12.)
Gant filed a Reply on June 26, 2006. (ECF No. 13.)
On October 27, 2006, Gant filed a motion seeking leave to
amend to assert an additional issue, that his attorney rendered
ineffective assistance by failing to file a notice of appeal
despite being requested to do so. (ECF No. 15.) The Court issued an
order on July 16, 2007 granting leave to amend and directing the
Government to respond to the motion, as amended. (ECF No. 16.) The
Government filed its Response to Petitioner’s Amendment to Section
2255 Motion on August 8, 2007. (ECF No. 17.)
On March 5, 2009, the Court issued an order stating that
an evidentiary hearing was necessary on Defendant’s claim that his
attorney failed to file a notice of appeal. The Court referred the
matter to the Magistrate Judge for appointment of counsel. (ECF No.
19.) On May 14, 2009, the Order of Reference was broadened to
authorize the Magistrate Judge to conduct a limited evidentiary
hearing and to issue a report and recommendation. (ECF No. 23.)
Counsel was appointed to represent Defendant on May 19, 2009. (ECF
No. 24.) On August 10, 2009, Gant, through counsel, filed a Notice
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that he “does not intend to assert any of the other claims in the
motion to vacate at the hearing.” (ECF No. 28.)
On
July
11,
2011,
United
States
Magistrate
Judge
Charmiane G. Claxton conducted an evidentiary hearing on the
matter, at which Defendant and his trial counsel, Lorna McClusky,
testified. (ECF No. 33.) The minute entry for the hearing states
that “Petitioner has reduced his claim to ineffective assistance of
counsel due to failure to file a Notice of Appeal.” (Id.) On
October
12,
2011,
the
Magistrate
Judge
issued
a
Report
and
Recommendation (“R&R”) recommending that Gant’s motion to vacate be
denied. (ECF No. 36.) Neither party has filed objections to the
R&R, and the time for objecting has expired.
Upon de novo review of the R&R, the Court ADOPTS the
findings of fact in their entirety. (See ECF No. 36 at 1-3.)
In Rodriguez v. United States, 395 U.S. 327, 89 S. Ct.
1715, 23 L. Ed. 2d 340 (1969), the Supreme Court held that the
failure of defense counsel to file a notice of appeal despite being
instructed to do so by his client constitutes per se ineffective
assistance of counsel, without regard to the legal merit of any
issues that might be raised on direct appeal. See also Roe v.
Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed.
2d 985 (2000) (“We have long held that a lawyer who disregards
specific instructions from the defendant to file a notice of appeal
acts in a manner that is professionally unreasonable. This is so
3
because a defendant who instructs counsel to initiate an appeal
reasonably relies upon counsel to file the necessary notice.
Counsel’s failure to do so cannot be considered a strategic
decision; filing a notice of appeal is a purely ministerial task,
and the failure to file reflects inattention to the defendant’s
wishes.”) (citations omitted); Ludwig v. United States, 162 F.3d
456, 459 (6th Cir. 1998) (“[T]he failure to perfect a direct
appeal, in derogation of a defendant’s actual request, is a per se
violation of the Sixth Amendment.”). Nonetheless, the Sixth Circuit
has “emphasize[d] . . . that a defendant’s actual ‘request’ is
still a critical element in the Sixth Amendment analysis. The
Constitution does not require lawyers to advise their clients of
the right to appeal. Rather, the Constitution is only implicated
when a defendant actually requests an appeal, and his counsel
disregards the request.” Ludwig, 162 F.3d at 459; see also Regalado
v. United States, 334 F.3d 520, 525-26 & n.3 (6th Cir. 2003) (a
client’s “express[ion of] her desire to file an appeal” is not
equivalent to a specific instruction to her attorney to file an
appeal).
In this case, the R&R credited the testimony of trial
counsel that Gant had told her he did not intend to appeal his
sentence. (ECF No. 36 at 2-3.) This conclusion is consistent with
Gant’s statement on the record at the sentencing hearing. (Tr. 245,
United States v. Gant, No. 03-20369-JMP (W.D. Tenn.), ECF No. 145.)
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Notably, Gant did not testify that he instructed his attorney to
file a notice of appeal. Instead, his position is that, prior to
the sentencing hearing, he “informed Counsel that he wanted to
appeal his sentence if he was sentenced to consecutive terms of
incarceration” and, after sentence was imposed, he “assumed Counsel
would appeal the sentence.” (ECF No. 36 at 2.) Gant’s conduct is
similar to that of the client in Regalado, whose expression of her
desire to file an appeal was held not to rise to the level of a
specific request. Because Gant did not ask his attorney to file a
notice
of
appeal,
his
attorney
did
not
render
ineffective
assistance by failing to perfect an appeal.1
1
In Flores-Ortega, the Supreme Court stated that,
[i]n those cases where the defendant neither instructs counsel to
file an appeal nor asks that an appeal not be taken, we believe the
question whether counsel has performed deficiently by not filing a
notice of appeal is best answered by first asking a separate, but
antecedent, question: whether counsel in fact consulted with the
defendant about an appeal. We employ the term “consult” to convey a
specific meaning — advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable effort to
discover the defendant’s wishes. If counsel has consulted with the
defendant, the question of deficient performance is easily answered:
Counsel performs in a professionally unreasonable manner only by
failing to follow the defendant’s express instructions with respect
to an appeal. If counsel has not consulted with the defendant, the
court must in turn ask a second, and subsidiary, question: whether
counsel’s failure to consult with the defendant itself constitutes
deficient performance. That question lies at the heart of this case:
Under what circumstances does counsel have an obligation to consult
with the defendant about an appeal?
Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S. Ct. 1029, 1035, 145 L. Ed. 2d
985 (2000) (record citation omitted). The Court held that “counsel has a
constitutionally imposed duty to consult with the defendant about an appeal when
there is reason to think either (1) that a rational defendant would want to
appeal (for example, because there are non-frivolous grounds for appeal), or (2)
that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480, 120 S. Ct. at 1036. In this case, Defendant
stated on the record at the sentencing hearing that he was not interested in
(continued...)
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Therefore,
the
Court
ADOPTS
the
Report
and
Recommendation. Gant’s motion to vacate his sentence pursuant to 28
U.S.C. § 2255 is DENIED. Judgment shall be entered for the United
States.
Twenty-eight U.S.C. § 2253(a) requires the district court
to evaluate the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability (“COA”) “only if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Fed. R.
App.
P.
22(b).
No
§
2255
movant
may
appeal
without
this
certificate.
A COA may issue only if the petitioner has made a
substantial showing of the denial of a constitutional right, and
the COA must indicate the specific issue(s) which satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial
showing” is made when the movant demonstrates that “reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.
Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 3394 n.4, 77 L.
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(...continued)
appealing and, therefore, counsel was not ineffective in failing further to
consult with him about an appeal after the hearing had concluded.
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Ed. 2d 1090 (1983)); Henley v. Bell, 308 F. App’x 989 (6th Cir.
2009) (same), cert. denied, ___ U.S. ___, 129 S. Ct. 1057, 173 L.
Ed. 2d 482 (2009). A COA does not require a showing that the appeal
will succeed. Miller, 537 U.S. at 337; 123 S. Ct. at 1039; Caldwell
v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011) (same). Courts
should not issue a COA as a matter of course. Bradley v. Birkett,
156 F. App’x 771, 773 (6th Cir. 2005) (quoting Miller, 537 U.S. at
337, 123 S. Ct. at 1039).
In this case, there can be no question that the issues
raised in this § 2255 motion are without merit for the reasons
previously stated. Because any appeal by Defendant on the issues
raised in this motion does not deserve attention, the Court DENIES
a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation
Reform Act of 1995, 28 U.S.C. § 1915(a)-(b), does not apply to
appeals of orders denying § 2255 motions. Kincade v. Sparkman, 117
F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis
in a § 2255 case, and thereby avoid the appellate filing fee
required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain
pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d
at 952. Rule 24(a) provides that a party seeking pauper status on
appeal must first file a motion in the district court, along with
a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule
24(a) also provides that if the district court certifies that an
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appeal would not be taken in good faith, or otherwise denies leave
to appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App.
P. 24(a) (4)-(5).
In this case, for the same reasons the Court denies a
certificate of appealability, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter
would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED.2
IT IS SO ORDERED this 1st day of November 2011.
s/ JON PHIPPS McCALLA
JON PHIPPS McCALLA
CHIEF U.S. DISTRICT JUDGE
2
If Defendant files a notice of appeal, he must also pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.
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