Gross v. USA

Filing 59

MEMORANDUM OPINION AND ORDER adopting in part, re-referring in part 57 FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY PETITIONER'S MOTION under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed by petitioner ROBERT HADLEY GROSS. (Ordered by Senior Judge Sidney A Fitzwater on 7/29/2019) (Senior Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION
ROBERT HADLEY GROSS,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 6:16-CV-071-D
(Criminal No. 6:14-CR-38-J(1))

MEMORANDUM OPINION
AND ORDER
Before the court is the United States Magistrate Judge’s February 27, 2019 findings,
conclusions, and recommendation and movant Robert Hadley Gross’s (“Gross’s”) March 13,
2019 objections. After making an independent review of the pleadings, files, and records in
this case, and the findings, conclusions, and recommendation of the magistrate judge, the
court concludes that the findings and conclusions are correct in part. It is therefore ordered
that the findings, conclusions, and recommendation of the magistrate judge are adopted in
part, and, to the extent the court disagrees with the magistrate judge’s findings, conclusions,
and recommendation, the case is re-referred to the magistrate judge for further proceedings.
I
Without suggesting that the court agrees in every respect with the magistrate judge’s
analysis, the court concludes on plain error review1 that the magistrate judge is correct in

1

In his March 13, 2019 objections, Gross does not object to the magistrate judge’s
findings, conclusions, or recommendation on this ground of his § 2255 motion.

recommending that the court deny Gross’s motion for relief under 28 U.S.C. § 2255 on the
ground that the pretrial restraint of his untainted assets denied Gross his right to counsel of
choice within the meaning of Luis v. United States, ___ U.S. ___, 136 S.Ct. 1083 (2016).
It is therefore ordered that the recommendation of the United States Magistrate Judge is
adopted as to this ground of Gross’s motion.
II
Gross also seeks relief under § 2255 on the ground that his appointed trial counsel,
Sherylynn A. Kime-Goodwin, Esquire (“Kime-Goodwin”), was ineffective for failing to file
an appeal as instructed2 and for failing to properly consult with Gross about an appeal.
A
The Sixth Amendment guarantees “reasonably effective” legal assistance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “To show ineffective assistance, the
two-prong Strickland test requires a defendant to show that (1) counsel’s representation fell
below an objective standard of reasonableness, and (2) such deficient performance prejudiced
the defendant.” United States v. Cong Van Pham, 722 F.3d 320, 323 (5th Cir. 2013) (citing
Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)). “In Roe v. Flores-Ortega, the Supreme
Court elucidated how the Strickland test applies in the context of counsel’s failure to file an
appeal ‘when the defendant has not clearly conveyed his wishes [regarding an appeal] one

2

The court concludes on plain error review that the magistrate judge is correct in
concluding that Gross failed to carry his burden of showing by a preponderance of the
evidence that he told and/or instructed Kime-Goodwin to file a notice of appeal. Gross does
not object to this finding and conclusion in his March 13, 2019 objections.
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way or the other.’” Id. (alteration in original) (quoting Flores-Ortega, 528 U.S. at 477).
Under Flores-Ortega the first Strickland prong begins with the question whether
counsel “consulted” with the defendant regarding an appeal. Flores-Ortega, 528 U.S. at 478.
“‘Consulting’ is a term of art that means ‘advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s
wishes.” Pham, 722 F.3d at 323 (quoting Flores-Ortega, 528 U.S. at 478). “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.” Flores-Ortega, 528 U.S. at 478.
“If, however, counsel failed to consult with the defendant about an appeal, then the
question is whether that failure was unreasonable because it breached the duty to consult.”
Pham, 722 F.3d at 324. “[C]ounsel 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 nonfrivolous grounds for appeal), or
(2) that this particular defendant reasonably demonstrated to counsel that he was interested
in appealing.” Flores-Ortega, 528 U.S. at 480. “The existence of a duty to consult is
assessed in light of ‘all the information counsel knew or should have known.’” Pham, 722
F.3d at 324 (citing Flores-Ortega, 528 U.S. at 480). “Whether the conviction followed a trial
or a guilty plea is ‘highly relevant,’ although not determinative, as is whether the defendant
waived his right to appeal and whether he received a sentence for which he bargained.” Id.
(quoting Flores-Ortega, 528 U.S. at 480). “The Supreme Court predicted that district courts
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would find a duty to consult ‘in the vast majority of cases.’” Id. (quoting Flores-Ortega, 528
U.S. at 481).
B
In her findings, conclusions, and recommendation, the magistrate judge determined
that Kime-Goodwin had sufficiently consulted with Gross regarding an appeal. The
magistrate judge found that
Ms. Kime-Goodwin’s discussion of appellate rights presentencing, combined with the Court’s discussion and Gross’s
understanding of appellate rights during sentencing and Ms.
Kime-Goodwin’s contact with the defendant immediately
following sentencing, all indicate that Gross could have
intelligently and knowingly asserted his right to an appeal if he
had wanted to do so. The Court finds that Gross, however,
realized there was “nothing to gain,” by an appeal as discussed
at the January 11, 2016 in-person meeting with his attorney
post-sentencing.
Mag. J. Rec. at 14.
Although, following de novo review, the court does not disagree with the magistrate
judge’s conclusion that Kime-Goodwin “consulted” with Gross regarding his right, generally,
to file an appeal, the court is unable to conclude on the present record that Kime-Goodwin
sufficiently “consulted” with Gross regarding an appeal of the $100,000 fine. In fact, the
record suggests, and the government does not argue otherwise, that Kime-Goodwin never
discussed with Gross the advantages and disadvantages of taking an appeal of the $100,000
fine and never made any effort to discover Gross’s wishes regarding an appeal based on that

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component of his sentence.3
C
Having concluded that Kime-Goodwin did not consult with Gross regarding the
advantages and disadvantages of appealing the $100,000 fine, the court must next consider
whether Kime-Goodwin had a duty to do so.4 Under Flores-Ortega

3

In his objections, Gross appears to argue that Kime-Goodwin failed to “consult” with
him because she did not discuss the procedure and time limits involved in filing an appeal
or Gross’s right to appointed counsel on appeal. See Objs. 5-6, 9. Assuming arguendo that
Kime-Goodwin failed to consult with Gross on these matters and that she had a duty to do
so, Gross has failed to establish that he was prejudged as a result of the alleged failure to
consult regarding the procedure, time limits, or right to counsel on appeal. Gross presented
no evidence that he would have timely filed an appeal had he been informed of the proper
procedure or time limits or had he been informed of his right to appointed counsel on appeal.
4

In Flores-Ortega the Court rejected “a bright-line rule that counsel must always
consult with the defendant regarding an appeal,” noting that such a holding would be
inconsistent with Strickland and common sense. Flores-Ortega, 528 U.S. at 479-80. The
Court explained:
For example, suppose that a defendant consults with counsel;
counsel advises the defendant that a guilty plea probably will
lead to a 2 year sentence; the defendant expresses satisfaction
and pleads guilty; the court sentences the defendant to 2 years’
imprisonment as expected and informs the defendant of his
appeal rights; the defendant does not express any interest in
appealing, and counsel concludes that there are no nonfrivolous
grounds for appeal. Under these circumstances, it would be
difficult to say that counsel is ‘professionally unreasonable,’ as
a constitutional matter, in not consulting with such a defendant
regarding an appeal.
Id. at 479 (emphasis added)(citation omitted). Unlike the hypothetical posed by the Court
in Flores-Ortega, there is no indication here that the $100,000 fine was an expected
component of the sentence, and, moreover, as discussed below, see infra § II(C), Gross
contends that he has at least two non-frivolous grounds for appeal.
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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 nonfrivolous grounds for appeal), or (2) that
this particular defendant reasonably demonstrated to counsel
that he was interested in appealing.
Flores-Ortega, 528 U.S. at 480 (emphasis added).
The magistrate judge did not specifically conclude, under the second prong of FloresOrtega, that Gross did not reasonably demonstrate to counsel that he was interested in
appealing. But she did make sufficient factual findings, to which Gross does not object, to
support such a conclusion.5 Having conducted de novo review, the court adopts the
magistrate judge’s findings and concludes, based on the credible evidence, that Gross did not
reasonably demonstrate to Kime-Goodwin that he was interested in filing an appeal.
The court’s analysis, however, does not end here. A constitutionally-imposed duty
to consult may independently arise if there is reason to think, on an objective basis, that a
rational defendant in Gross’s position would want to appeal.6 Id. And Flores-Ortega

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For example, the magistrate judge noted that “both [Kime-Goodwin and FPD
appellate counsel Brandon Beck, Esquire (“Beck”)] indicated that Gross never expressed a
desire to appeal, asked about appeal, or otherwise indicated dissatisfaction with the plea deal
or sentence” during telephonic conversations with Gross after his sentencing, and found the
testimony of Kime-Goodwin and Beck to be more credible than Gross’s testimony to the
contrary. Mag. J. Rec. at 12.
6

This prong of Flores-Ortega incorporates an objective “rational defendant” standard
and does not consider whether the defendant in the particular case indicated any desire to
appeal. See United States v. Sturgill, 2018 WL 6003864, at *2 (E.D. Ky. Nov. 15, 2018)
(“The ‘rational defendant’ standard is objective, not based on whether Mr. Sturgill himself
would want to appeal a decision.”); see also Lara-Ortiz v. United States, 2017 WL 4570378,
at *6 (S.D. Tex. June 21, 2017) (describing second prong of Flores Ortega as an “objective
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suggests that a rational defendant would want to appeal if there were non-frivolous grounds
for doing so. Id.; see also Lara-Ortiz v. United States, 2017 WL 4570378, at *7 (S.D. Tex.
June 21, 2017) (“Neither the Supreme Court, nor the Fifth Circuit Court of Appeals, have
ever expressly set out the standard to apply in considering what a hypothetical rational
defendant would want to do. The Supreme Court has, however, noted that a rational
defendant would want to appeal if there are ‘non-frivolous grounds’ for appeal. Other factors
to consider are: whether the defendant pled guilty; received a sentence that was bargained
for in the plea agreement; and whether the defendant waived some or all of his appellate
rights.” (citations omitted)), rec. adopted, 2017 WL 4539843 (S.D. Tex. Oct. 11, 2017);
Valletto v. United States, 195 F.Supp.2d 643, 646 n.3 (D.N.J. 2002) (noting that in the
“‘objective’ determination, the Supreme Court indicated that the most important
consideration is the presence or absence of non-frivolous grounds for appeal,” and that “[i]n
this case, there are, almost without question, non-frivolous grounds for appeal,” but deciding
case on subjective inquiry under Flores-Ortega because “ the Court is unable, based on the
record currently before it, to determine the non-frivolousness of the[] asserted errors”).
Gross contends that he has at least two non-frivolous grounds for appealing the fine
in this case:
First, Gross could have argued that the fine was procedurally
and substantively unreasonable. Procedurally, the Court was
required to consider a host of factors before imposing the
$100,000 fine. U.S.S.G. § 5E1.2(d)(1)-(8) & (e). The

standard”), rec. adopted, 2017 WL 4539843 (S.D. Tex. Oct. 11, 2017).
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sentencing transcript does not reflect the Court’s stated
consideration of the § 5E1.2(d) & (e) factors. Moreover, the
Court’s decision to waive statutory interest on the fine was
inconsistent with a finding of financial ability to pay and may
also have constituted procedural error. . . . Gross could have
also argued that the fine was substantive[ly] unreasonable. . . .
Gross could have additionally argued that the fine was
unconstitutional in light of Southern Union Co. v. United States,
567 U.S. 343 (2012). Southern Union held that it is a violation
of the Sixth Amendment to impose a fine in excess of the
statutory maximum. While the fine in Gross’s case was not in
excess of the statutory maximum, . . . Gross could have made a
nonfrivolous argument for the extension of Southern Union to
any facts that were used to increase the fine beyond zero.
Objs. 10-13.7 In her findings, conclusions, and recommendation, the magistrate judge did
not address these allegedly non-frivolous ground for appeal or consider whether a rational
defendant in Gross’s position would have wanted to file an appeal based on any such
grounds.
D
Accordingly, the court re-refers this matter to the magistrate judge for a determination
of whether there is reason to think that a rational defendant in Gross’s position would have
wanted to appeal in this case, for example, because there are non-frivolous grounds for
appeal. See Flores-Ortega, 528 U.S. at 480. And because a finding that there are nonfrivolous grounds for appeal may impact the court’s conclusion regarding prejudice, see, e.g.,
id. at 485-86 (“We recognize that the prejudice inquiry we have described is not wholly

7

The court neither suggests nor decides that any of Gross’s proffered “non-frivolous”
grounds for appeal is, in fact, non-frivolous. In particular, the validity of his argument based
on Southern Union appears to be especially dubious. But that is not his only asserted ground.
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dissimilar from the inquiry used to determine whether counsel performed deficiently in the
first place; specifically, both may be satisfied if the defendant shows nonfrivolous grounds
for appeal.”), the court also re-refers this matter to the magistrate judge for a determination
of whether Gross has established prejudice. See, e.g., United States v. Gentry, 429 F.Supp.2d
806, 814 (W.D. La. 2006) (“Counsel argued that a duty arose nonetheless because a rational
defendant would want to appeal because, if properly and effectively advised, he would be
aware of the non-frivolous ground for appeal with respect to the loss issue that could reduce
the guidelines range by several months. The undersigned agrees that, given the length of the
sentence imposed and the nonfrivolous ground for appeal, counsel had a duty under the
circumstances to consult with his client about an appeal and determine with certainty his
client’s wishes on the subject. . . . [And] [j]ust as the existence of that ground helped give rise
to a duty to consult, it also establishes prejudice because a client made aware of that ground
and counseled about an appeal would have wanted to appeal.”), rec. adopted, 429 F.Supp.2d
806 (W.D. La. 2006).
*

*

*

For the reasons explained, the court adopts in part the magistrate judge’s findings,
conclusions, and recommendation that Gross’s motion for relief under 28 U.S.C. § 2255 be
denied on the ground that the pretrial restraint of his untainted assets denied Gross his right
to counsel of choice within the meaning of Luis. The court otherwise declines to adopt the
recommendation and re-refers this matter to the magistrate judge for further proceedings.
Without limiting the magistrate judge’s discretion concerning how to proceed, the court
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specifically directs the magistrate judge, using an objective standard, to consider whether a
reasonable defendant in Gross’s position would have wanted to appeal based on the existence
of non-frivolous grounds for appeal and whether, considering the existence of any nonfrivolous grounds for appeal, Gross has sufficiently demonstrated prejudice.
SO ORDERED.
July 29, 2019.

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

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