Gilbert v United States of America
Filing
16
ORDER granting Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255). The Court vacates and reenters Petitioner's judgment and sentence for the sole purpose of allowing Petitioner to file a notice of appeal. Petitioner's 14 MOTION to Seal is granted. The Clerk is DIRECTED to maintain Docket Number 15 under seal for the pendency of this case. Signed by U.S. District Judge John C Coughenour. (PM) cc: Petitioner via first class mail
THE HONORABLE JOHN C. COUGHENOUR
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
7
8
9
RUCHELL GILBERT,
10
Petitioner,
CASE NO. C18-0798-JCC
ORDER
v.
11
UNITED STATES OF AMERICA,
12
13
Respondent.
14
15
This matter comes before the Court on Petitioner Ruchell Gilbert’s petition pursuant to
16
28 U.S.C. section 2255 (Dkt. No. 1), the Government’s response (Dkt. No. 12), and Petitioner’s
17
motion to seal (Dkt. No. 14). Having thoroughly considered the parties’ briefing and the relevant
18
record, the Court finds oral argument unnecessary and hereby GRANTS Petitioner’s section
19
2255 petition (Dkt. No. 1) and Petitioner’s motion to seal (Dkt. No. 14) for the reasons explained
20
herein.
21
I.
22
BACKGROUND
The parties do not dispute the material facts at issue in this matter. 1 In his underlying
23
criminal case, Petitioner pled guilty to one count of conspiracy to distribute controlled substances
24
and one count of being a convicted felon in possession of a firearm. (Dkt. No. 12-1 at 2–11.) See
25
26
1
For that reason, it is unnecessary for the Court to hold an evidentiary hearing.
ORDER
C18-0798-JCC
PAGE - 1
1
United States of America vs. Ruchell Gilbert, Case No. CR12-0237-JCC, Dkt. No. 573 (W.D.
2
Wash. Sept. 9, 2013). The Court sentenced Petitioner to 130 months of imprisonment. Case No.
3
CR12-0237-JCC, Dkt. No. 806. Petitioner appealed the Court’s sentencing guideline calculation,
4
which the Court of Appeals denied based on the waiver of appeal contained in Petitioner’s plea
5
agreement. (Dkt. No. 12-1 at 13.)
6
Petitioner subsequently filed a section 2255 petition, arguing that his sentence should be
7
recalculated based on the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551,
8
2563, (2015). 2 Case No. CR12-0237-JCC, Dkt. No. 931. The Court granted Petitioner’s section
9
2255 motion and resentenced him to 125 months of imprisonment. (Dkt. No. 12-1 at 26); see
10
also Case No. CR12-0237-JCC, Dkt. No. 942. At resentencing, the Court did not articulate the
11
advisory guidelines range or total offense level. Case No. CR12-0237-JCC, Dkt. No. 942. 3
12
Petitioner instructed his counsel to appeal the Court’s new sentence. (Dkt. No. 4-1 at 3,
13
7.) Defense counsel agreed to file a notice of appeal, but told Petitioner he would first file a
14
motion for reconsideration asking the Court to specify the guidelines calculation underlying its
15
sentence. (Id. at 7.) Defense counsel additionally advised Petitioner, incorrectly, that filing a
16
motion for reconsideration would toll the 14-day deadline for filing a notice of appeal. (Id. at 8.)
17
Defense counsel waited until after the Court denied Petitioner’s motion for reconsideration to file
18
a notice of appeal. (Id.); see also Case No. CR12-0237-JCC, Dkt. No. 982.
19
The Ninth Circuit Court of Appeals dismissed Petitioner’s appeal as untimely. Case No.
20
CR12-0237-JCC, Dkt. No. 1040; see United States of America v. Ruchell Gilbert, Case No. 17-
21
22
23
24
25
2
In Johnson, the Supreme Court held that the residual clause of the Armed Career
Criminal Act, defining “violent felony,” was unconstitutionally vague. 135 S. Ct. at 2557.
Petitioner argued that a parallel definition of “crime of violence” in the U.S. Sentencing
Guidelines was similarly vague and that his sentence should thus be invalidated. Case No. CR120237-JCC, Dkt. No. 942. Although the Court agreed with Petitioner’s reasoning, the U.S.
Supreme Court subsequently held that its ruling in Johnson does not apply to the Sentencing
Guidelines. See Beckles v. United States, 137 S. Ct. 886, 892 (2017).
3
26
The Court subsequently issued a statement of reasons that listed Petitioner’s base
offense level and guideline range.
ORDER
C18-0798-JCC
PAGE - 2
1
30024 (9th Cir. Jan. 19, 2018). In its order, the Ninth Circuit rejected Petitioner’s argument that a
2
motion for reconsideration tolled the deadline for filing a notice of appeal. Id. The Ninth Circuit
3
also stated that its order “does not foreclose [Petitioner] from filing a 28 U.S.C. § 2255 motion in
4
the district court based on a claim of ineffective assistance of counsel for failing to file a timely
5
notice of appeal . . .” Id.
6
Petitioner filed this section 2255 petition asserting that he received ineffective assistance
7
of counsel when his counsel failed to file a timely notice of appeal. (Dkt. No. 1 at 4.) Petitioner
8
asks the Court to vacate his judgment and sentence and re-enter it nunc pro tunc, so that he can
9
file a timely appeal. (Id. at 12.) The Government has filed a response in opposition to Petitioner’s
10
motion, arguing that Petitioner was not prejudiced by his counsel’s failure to file a timely appeal.
11
(Dkt. No. 12 at 1.)
12
II.
DISCUSSION
13
A.
Legal Standard
14
To state a cognizable section 2255 claim, a petitioner must assert that he or she is in
15
custody in violation of the Constitution or the laws of the United States, that the district court
16
lacked jurisdiction, that his sentence exceeded the maximum allowed by law, or that his sentence
17
is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A petitioner bears the burden to
18
show by a preponderance of the evidence that an error occurred. See Johnson v. Zerbst, 304 U.S.
19
458, 468–69 (1938); Simmons v. Blodgett, 110 F.3d 39, 41–42 (9th Cir. 1997).
20
B.
Petitioner’s Claim
21
Petitioner asserts that his judgment and sentence should be vacated and reentered because
22
his counsel’s failure to file a timely notice of appeal amounted to ineffective assistance of
23
counsel. (Dkt. No. 1 at 4.) The Government argues that Petitioner cannot demonstrate ineffective
24
assistance of counsel because he cannot show that he was prejudiced by his counsel’s failure to
25
file a timely appeal, and that prejudice should not be presumed. (Dkt. No. 12 at 5.)
26
To prevail on an ineffective assistance claim, a petitioner must show that counsel’s
ORDER
C18-0798-JCC
PAGE - 3
1
representation “fell below an objective standard of reasonableness” and that the deficient
2
performance caused the petitioner to be prejudiced. See Strickland v. Washington, 466 U.S. 668,
3
688, 694 (1984); United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). The Supreme
4
Court has held that “a lawyer who disregards specific instructions from the defendant to file a
5
notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528
6
U.S. 470, 477 (2000). The Ninth Circuit has similarly held that an attorney’s failure to follow his
7
client’s request to file an appeal is per se ineffective assistance of counsel, regardless of the
8
merits of the appeal. United States v. Sandoval-Lopez, 409 F.3d 1193, 1197–98 (9th Cir. 2005).
9
Here, it is undisputed that Petitioner instructed his counsel to file a notice of appeal and
10
that his counsel filed an untimely appeal that was subsequently dismissed on that basis. (Dkt.
11
Nos. 4-1 at 3, 7, 8; 12-1 at 13.) The Court concludes, and the Government does not appear to
12
dispute, that defense counsel’s failure to file a timely appeal after being instructed to do so by
13
Petitioner was professionally unreasonable.
14
The Government instead argues that Petitioner cannot show that his counsel’s failure to
15
file a timely appeal caused him prejudice. Specifically, the Government asserts that a
16
presumption of prejudice should not apply to Petitioner’s ineffective assistance claim because
17
defense counsel did not disregard Petitioner’s instructions to appeal, but merely committed
18
“attorney error” by filing an untimely notice of appeal. (Dkt. No. 12 at 5) (citing Flores-Ortega,
19
528 U.S. at 483). The Government goes on to argue that Petitioner cannot demonstrate actual
20
prejudice because his plea agreement contained a waiver of appeal, which the Ninth Circuit
21
found valid when Petitioner appealed his original sentence. (Id. at 6; Dkt. No. 12-1 at 13.)
22
The Government’s position is not supported by the Supreme Court’s holding in Flores-
23
Ortega or the Ninth Circuit’s holding in Sandoval-Lopez. In Flores-Ortega, the Supreme Court
24
determined that a presumption of prejudice applies to ineffective assistance claims where
25
counsel’s deficient performance deprives a defendant “of the appellate proceeding all together.”
26
528 U.S. at 483. Comparing such situations to cases in which defendants are deprived of counsel
ORDER
C18-0798-JCC
PAGE - 4
1
during a critical stage of the proceedings, the Supreme Court noted that “[t]he even more serious
2
denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which
3
he had a right, similarly demands a presumption of prejudice.” Id. The Supreme Court ultimately
4
held that in such cases a presumption of prejudice applies where a defendant demonstrates “that
5
there is a reasonable probability that, but for counsel’s deficient failure to consult him about an
6
appeal, he would have timely appealed.” Id.
7
While based on slightly different facts, the Supreme Court’s holding in Flores-Ortega
8
warrants applying a presumption of prejudice to this case. Here, Petitioner instructed his counsel
9
to appeal the Court’s resentencing, and but for defense counsel’s deficient performance—his
10
mistaken belief that filing a motion for reconsideration would toll the time to appeal—Petitioner
11
would have filed a timely appeal. Although Flores-Ortega dealt with a scenario in which counsel
12
failed to consult her client about whether to appeal, the effect of counsel’s error in this case was
13
functionally equivalent—counsels’ deficient performance deprived defendant from receiving an
14
appeal. 4 See Sandoval-Lopez, 409 F.3d 1197 (“The prejudice in failure to file a notice of appeal
15
cases is that the defendant lost his chance to file the appeal, not that he lost a favorable result that
16
he would have obtained by appeal.”) In other words, the Court fails to see why a presumption of
17
prejudice should not apply in a case such as this, where defense counsel’s error caused
18
Petitioner’s appeal to be dismissed as untimely.
19
For those reasons, the Court finds that Petitioner has demonstrated that his counsel
20
provided ineffective assistance of counsel when he failed to file a timely appeal. Therefore,
21
Petitioner’s motion to vacate, set aside, or correct his sentence pursuant to section 2255 (Dkt.
22
No. 1) is GRANTED. The Court additionally GRANTS Petitioner’s motion to seal (Dkt. No.
23
14). The exhibit Petitioner requests to seal contains sensitive personal identifying information
24
which should not be disclosed to the public.
25
4
26
In this case, the Ninth Circuit was clear that it dismissed Petitioner’s appeal solely for
being untimely. (See Dkt. No. 12-1 at 13.)
ORDER
C18-0798-JCC
PAGE - 5
1
III.
CONCLUSION
2
In accordance with the above rulings, the Court ORDERS as follows:
3
1.
Petitioner’s motion to vacate, set aside, or correct his sentence pursuant to section
4
2255 (Dkt. No. 1) is GRANTED. The Court vacates and reenters Petitioner’s judgment and
5
sentence for the sole purpose of allowing Petitioner to file a notice of appeal.
6
7
2.
Petitioner’s motion to seal (Dkt. No. 14) is GRANTED. The Clerk is DIRECTED
to maintain Docket Number 15 under seal for the pendency of this case.
8
3.
The Clerk is DIRECTED to send a copy of this order to Petitioner.
9
DATED this 24th day of September 2018.
A
10
11
12
John C. Coughenour
UNITED STATES DISTRICT JUDGE
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER
C18-0798-JCC
PAGE - 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?