Opinion
Case No. 2:05-cv-387, Crim. No. 2:04-cr-041.
January 4, 2006
ORDER and REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant petition, respondent's return of writ, and the exhibits of the parties.
For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED.
I. PROCEDURAL HISTORY
On March 24, 2004, petitioner was charged by information with the delivery and sale of counterfeit obligations of the United States, in violation of 18 U.S.C. § 473. Doc. No. 11. On April 2, 2004, while represented by counsel and pursuant to a plea agreement signed on March 18, 2004, petitioner pleaded guilty. Doc. No. 14. On June 18, 2004, petitioner was sentenced to 33 months, plus three years supervised release and $100.00 special assessment. Doc. No. 22. Petitioner never filed an appeal.On April 18, 2005, petitioner filed the instant pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He asserts as follows:
1. Petitioner contends he was denied effective assistance of counsel during plea proceedings and sentencing proceedings.
Petitioner's first attorney did not professionally guide him during the plea process. Petitioner's second attorney failed him during sentencing because he did not know relevant law in relation to the guidelines.
2. Petitioner contends his sentence is in violation of the Constitution.
Petitioner's sentence was enhanced after his plea of guilty. This enhancement was found true under a standard that [violates] the United States Constitution, see United States v. Booker, 543 U.S. 220 (2005). . . .
3. Petitioner contends that United States v. Booker, supra, is retroactive for his initial § 2255.
4. Petitioner contends that an evidentiary hearing must be conducted to reasonably ascertain the truth of his claims.
It is the position of the respondent that all of petitioner's claims are without merit.
II. CLAIMS TWO AND THREE
In claims two and three, petitioner asserts that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, supra, 543 U.S. at 220. Specifically, petitioner asserts that he improperly was held accountable for $11,695 in counterfeit currency, and his sentence thereby unconstitutionally enhanced four levels pursuant to § 2B1.1(b)(1)(C) of the sentencing guidelines, which provides:
§ 2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States
(a) Base Offense Level:
(1) 7, if (A) the defendant was convicted of an offense referenced to this guideline; and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more; or (2) 6, otherwise.
(b) Specific Offense Characteristics
(1) If the loss exceeded $5,000, increase the offense level as follows:
Loss (apply the greatest) Increase in level
***
(C) More than $10,000 ............................ add 4Id.; see PreSentence Investigation Report, ¶ 33. Petitioner also asserts that his criminal history score unconstitutionally was enhanced two points due to his status on supervised release at the time of the alleged offense pursuant to § 4A1.1(d) of the sentencing guidelines, which provides:
Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.Id.; see PreSentence Investigation Report, ¶ 57. Both of these claims are without merit.
In Blakely, the Supreme Court reversed a sentence imposed under the State of Washington's determinate sentencing scheme after finding the trial judge had enhanced the defendant's kidnaping sentence beyond the statutory maximum based upon his own finding, by a preponderance of the evidence, the defendant had acted with "deliberate cruelty." 124 S.Ct. at 2537-38. In doing so, the Supreme Court reiterated its previous holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), but clarified that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537 (emphasis in original).United States v. Bucheit, 134 Fed.Appx. 842, unpublished, 2005 Fed.App. 0431N (6th Cir. May 23, 2005). Although the United States Court of Appeals for the Sixth Circuit subsequently held that Blakely did not compel the conclusion that the United States Sentencing Guidelines violated the 6th Amendment, see United States v. Koch, 383 F.3d 436, 438 (6th Cir. 2004), that decision was overturned in United States v. Booker, supra, 125 S.Ct. At 767-68, wherein the Supreme Court invalidated the mandatory nature of the sentencing guidelines.
The record in this case reflects that the final judgment was issued June 21, 2004. Blakely was decided on June 24, 2004. Because the time period for filing an appeal had not yet expired at the time the Supreme Court issued its decision in Blakely, this Court concludes that Blakely is applicable to petitioner's sentence. See United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002) (citations omitted); Fed.R.App.P. 4(b)(1)(A); United States v. Saikaly, 424 F.3d 514, 517 (6th Cir. 2005), citing Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005) (footnotes and other citations omitted). Nonetheless, nothing in the record supports petitioner's allegation that his sentence is constitutionally prohibited.
At the time of petitioner's guilty plea, Special Agent McClelland summarized the facts of this case as follows:
On February 9, 2004, the United States Secret Service received information from a confidential source that an unidentified individual, later identified as Andrew Jackson, wished to sell a quantity of counterfeited United States currency in exchange for genuine United States currency.
On February 11, 2004, several consensually monitored telephone calls were placed to Jackson's con-conspirator, Todd Brown, by a confidential informant. During the conversations, agents recorded the coordination of a controlled purchase of $1,000 in counterfeit United States currency in exchange for $200 genuine United States currency. The purchase was scheduled to take place at the Exxon gas station located at 1425 North Cassidy Avenue, Columbus, Ohio, which is within the Southern District of Ohio.
Continuing, on February 11, 2004, agents established surveillance on the aforementioned meeting location. Agents observed Andrew Jackson and Brown arriving at the aforementioned meeting location and subsequently providing the informant with a thousand dollars in counterfeit United States currency in exchange for $200 United States currency. During a consensually monitored recording of the deal, Jackson was recorded describing the method in which the counterfeit currency was manufactured, as well as methods in which genuine currency security features could be defeated.
Furthermore, Jackson provided advice on how to successfully negotiate the counterfeit currency at stores. Jackson was recorded providing his prior penitentiary identification numbers which assisted agents in positively identifying Jackson.
On February 13, 2004, agents of the service coordinated a controlled purchase of approximately $5,000 to $6,000 in counterfeit United States currency in exchange for $1,000 in genuine United States currency between Jackson and the informant. Again, the exchange was established to take place at the Exxon gas station located at 1425 North Cassidy Avenue.
Continuing, on February 13, 2004, agents observed Jackson furnish the informant with a bag of what appeared to be counterfeit United States currency. Jackson and Brown were both subsequently arrested. During a Mirandized interview, Jackson admitted to selling counterfeit United States currency on February 11 and February 13, 2004, in exchange for genuine currency. Jackson indicated he did not manufacture the currency but received it from another source.
The aforementioned investigation culminated in the controlled purchase of $11,615 in counterfeit $100s, $50s, $10s and $5s Federal Reserve notes which occurred within the Southern District of Ohio.Sentencing Transcript, Appendix A to Return of Writ, at 16-18. Petitioner admitted to the foregoing statement of facts:
COURT: Is what he said true and correct?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Is that what you did?
DEFENDANT JACKSON: Yes, sir, Your Honor.
COURT: Are you offering to plead guilty here this afternoon because you are in fact guilty of the offense charged in Count 1 of the information?
DEFENDANT JACKSON: Yes, Your Honor.
Id., at 19. Further, the information to which petitioner pleaded guilty likewise indicated that the sum of counterfeit obligations sold by petitioner totaled $11,615.00. See Doc. No. 11. Therefore, the enhancement of petitioner's sentence based upon the amount of counterfeit currency involved, which fact he admitted, does not violate Blakely. See United States v. Webb, 403 F.3d 373, 381 (6th Cir. 2005), citing United States v. Parsons, 396 F.3d 1015, 1017 (6th Cir. 2005).
Likewise, the Court is not persuaded by petitioner's argument that his sentence was enhanced unconstitutionally by the Court's consideration of petitioner's status on supervised release at the time of commission of the alleged offense. The United States Court of Appeals for the Sixth Circuit has held that, under Blakely, a sentencing court may make determinations regarding a defendant's prior convictions:
". . . certain aspects of the character of prior convictions are so basic as to be implicit in the fact of a prior conviction." United States v. Hollingsworth, 414 F.3d 621, 623 (6th Cir. 2005); see also United States v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005) ("This Court, among others, has rejected the argument that Apprendi requires the nature of prior convictions to be determined by a jury, holding instead that the district court's authority to determine the existence of prior convictions was broad enough to include determinations regarding the nature of those prior convictions."); United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004) ("In the usual case, we expect that a district court's determination that a defendant has a record of prior convictions will be accompanied by the judge's determination of when those convictions were entered."). . . .
[Petitioner] alleges that the district court made five impermissible factual determinations regarding his prior convictions: (1) the date of commission, (2) the date the convictions were entered, (3) his age on the date of commission, (4) the length of the sentences imposed, and (5) whether Stone was still under a criminal-justice sentence when he committed the RICO offenses at issue. But Stone does not cite any authority holding that the district court is prohibited from making these findings. Common sense dictates that these facts are "so basic as to be implicit in the fact of a prior conviction." See Hollingsworth, 414 F.3d at 623. The date the offense was committed, the date of entry of the conviction, the duration of the sentence, and whether the sentence had expired before the offense at issue are facts basic to the conviction — the "when[s]." See Santiago, 268 F.3d at 156-57.United States v. Johnson, ___ F.3d ___, 2005 WL 3179893 (6th Cir. November 30, 2005). Additionally, in at least two unreported decisions, the United States Court of Appeals for the Sixth Circuit has rejected the same argument petitioner raises here:
The fact of a prior conviction is not a fact that must be admitted or proved to a jury. Booker, 125 S.Ct. at 756 ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."); Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); see also Bradley, 400 F.3d at 462-63; United States v. Powers, 129 Fed.Appx. 942 (6th Cir. 2005) (noting that this is still true despite Justice Thomas's concurrence in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 1263-64, 161 L.Ed.2d 205 (2005) suggesting that it will not be true for much longer). This holding necessarily extends to the factfinding underlying the prior conviction. . . .
* * *
. . . [the court did not] err by adding two criminal history points pursuant to U.S.S.G. § 4A1.1(d), which applies if the defendant "committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." A "criminal justice sentence" for the purposes of § 4A1.1(d) includes a "diversionary disposition." United States v. Gorman, 312 F.3d 1159, 1164 (10th Cir. 2002); see also United States v. Craft, Nos. 95-5508, 95-5545, 1996 WL 185783 at *2 (6th Cir. Apr. 17, 1996). The Mississippi court sentenced Paseur for possession of burglary tools on October 18, 2002 and issued a two-year order of non-adjudication. Accordingly, Paseur was in a diversionary program when he committed the instant offense in 2003. Because Paseur was under a criminal justice sentence when he committed the instant drug offense, the addition of criminal history points under U.S.S.G. § 4A1.1(d) was appropriate.United States v. Paseur, 148 Fed.Appx. 404, 408-09, unpublished, 2005 WL 2001155 (6th Cir. August 19, 2005).
While we recognize that at least one Justice has predicted the imminent demise of the Almendarez-Torres exception for prior convictions, Shepard v. United States, ___ U.S. ___, ___, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005) (Thomas, J.) (concurrence), that has yet to happen. Until it does, that exception permits a district court to take notice that defendant was on probation when the charged offense occurred. U.S.S.G. § 4A1.1, comment. (n. 4).United States v. McGhee, 2005 Fed.App. 0951N, unpublished, 2005 WL 3304107 (6th Cir. Dec. 6, 2006).
This Court must also consider whether petitioner's sentence violates the Supreme Court's January 12, 2005, decision in Booker.
Remand for resentencing is required under Booker when a defendant's sentence was imposed in violation of the Sixth Amendment. Oliver, 397 F.3d at 377-78; see also United States v. McDaniel, 398 F.3d 540, 547-50 (6th Cir. 2005).
In addition, the remedy adopted in Booker, excising the provision making the guidelines mandatory, was held to apply to all defendants who were sentenced under the mandatory guideline scheme even if they did not suffer a Sixth Amendment violation. In the absence of a Sixth Amendment violation, a defendant sentenced under the mandatory guidelines is entitled to resentencing under Booker unless there is evidence in the record to rebut the presumption of prejudice. United States v. Barnett, 398 F.3d 516, 529 (6th Cir.), petition for cert. dismissed, 73 U.S.L.W. 3735 (Sept. 20, 2005) (No. 04-1690).United States v. Martinez, ___ F.3d ___, 2005 WL 3068177 (6th Cir. November 17, 2005). However, petitioner's sentence became final in July 2004, long before the Supreme Court's January 12, 2005, decision in Booker. Further, Booker is not retroactively applicable to cases on collateral review. Humphress v. United States, supra, 398 F.3d at 860; United States v. Saikaly, supra, 424 F.3d at 514. Therefore, Booker, does not provide petitioner the relief he seeks.
Claims two and three are without merit.
III. CLAIM ONE: INEFFECTIVE ASSISTANCE OF COUNSEL
In claim one, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to conduct adequate pre-trial investigation, failed to request discovery, and
used the possibility of more serious charges — counterfeiting — as a threatening tool to make me plea[d] to distribution.Affidavit of Petitioner. Petitioner also asserts that his attorney improperly failed to object at sentencing, failed to make any attempt to correct his allegedly unconstitutional sentence, and failed to advise him regarding the Supreme Court's June 24, 2004, decision in Blakely, or determine whether petitioner wanted to appeal his sentence under Blakely.
A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir. 1988). In order to obtain relief, a prisoner who is challenging the entry of his guilty plea on the basis of counsel ineffectiveness must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
The second, or "prejudice" requirement on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. Petitioner cannot meet this standard here.
Nothing in the record reflects that the government would have been unable to prove the charge against petitioner. To the contrary, the record appears to reflect that the government had a strong case. Undercover agents purchased counterfeit money from petitioner; in addition, petitioner admitted guilt when questioned by authorities. See discussion, supra. He faced a maximum term of imprisonment of twenty years, a fine of $250,000, and five years supervised release. See Plea Agreement, Doc. No. 12. Pursuant to the terms of his guilty plea, petitioner was able to obtain a two-level reduction in his recommended guideline sentence pursuant to U.S.S.G. § 3E1.1 for his acceptance of responsibility. See id; PreSentence Investigation Report, at 38. Additionally, the government agreed not to file any additional charges against him. See Plea Agreement, Doc. No. 12. Under such circumstances, it is unlikely that counsel would have recommended proceeding to trial.
Petitioner fails to indicate the nature of any information that could have been obtained by counsel through further pre-trial investigation, that was not. Additionally, at the time of his guilty plea, petitioner stated that he had discussed the charges against him with his attorney, and he was satisfied with his attorney:
COURT: . . . Mr. Jackson, have you received a copy of the information?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Have you read it over and discussed it with your counsel?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Has she explained the nature of the offense that the government proposes to charge you with in the information?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Has she explained the potential penalties for that offense?
DEFENDANT JACKSON: Yes, Your Honor.
Transcript, Guilty Plea, at 2-3.
COURT: Mr. Jackson, the information charges you with dealing in counterfeit obligations or securities of the United States. Do you understand the nature and meaning of that charge?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Have you told your lawyer everything you know about this case?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Do you believe Ms. Messmer is fully informed about all of the facts and circumstances on which this charge is based?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Has she fully advised you not only on the nature of the charge but also on any possible defenses that you might have?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Are you satisfied with your lawyer's advice and representation?
DEFENDANT JACKSON: Yes, Your Honor.
Id., at 7. Contrary to his allegations here, petitioner stated that his attorney had discussed with him ramifications of the United States Sentencing Guidelines:
COURT: [U]nder the Sentencing Reform Act of 1984, the United States Sentencing Commission has issued guidelines for judges to follow in determining the sentence in a criminal case. Have you and Ms. Messmer talked about how the sentencing guidelines might apply to your case?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Do you understand that the Court will not be able to determine what guideline applies to your case until after a presentence report has been completed and both you and the government have had a chance to make objections to the findings or conclusions of the probation officer?
DEFENDANT JACKSON: Yes, sir, Your Honor.
COURT: And do you understand that after it has been determined what guideline applies to a case, that the judge still has the authority in some circumstances to impose a sentence that is either more severe or less severe than the one called for by the guidelines?
DEFENDANT JACKSON: Yes, sir.
COURT: Do you understand that if the sentence that you receive in this case should turn out to be more severe than you hoped or expected, that you will still be bound by your guilty plea and will have no right to withdraw it?
DEFENDANT JACKSON: Yes, sir.
* * *
Transcript, Guilty Plea, at 9-10. Petitioner was advised of all of the rights that he was waiving, and indicated that he understood. Id., at 10-12. Petitioner denied being coerced into pleading guilty:
COURT: Mr. Jackson, has anyone, including an officer or agent of the government, or any of the lawyers, or anyone else, made any other or different assurances or promises of any kind other than what is in the plea agreement that caused you to plead guilty?
DEFENDANT JACKSON: . . . No, no one has made any other promises.
* * *
COURT: Have you been subjected to any threats or any force or any pressure of any kind that caused you to plead guilty?
DEFENDANT JACKSON: No, Your Honor.
COURT: Is your decision to plead guilty your own free and voluntary act?
DEFENDANT JACKSON: Yes, Your Honor.
Id., at 15-16. At sentencing, petitioner stated that he had discussed the PreSentence Investigation Report with his attorney:
COURT: Mr. Jackson, have you received a copy of the presentence investigation report?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Have you read it over and discussed it with your counsel?
DEFENDANT JACKSON: Yes, Your Honor.
COURT: Have you had the report for at least ten days before this hearing?
DEFENDANT JACKSON: Yes, Your Honor.
Sentencing Transcript, at 2-3. In view of all of the foregoing, petitioner's allegations here that his attorney failed to discuss the charges with him, and failed to adequately advise him regarding sentencing guidelines ramifications, are simply incredible.
[T]he representations of the defendant, his lawyer, and the prosecutor at [the guilty plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Additionally, for the reasons discussed, supra, the record fails to reflect that petitioner's sentence improperly was enhanced, pre or post Blakely, due to his status on probation, or due to the amount of currency involved. Thus, petitioner has failed to establish the ineffective assistance of counsel under Strickland v. Washington, supra, based upon counsel's failure to object at sentencing on such basis. To the extent that petitioner asserts that his attorney should have anticipated the Supreme Court's decisions in Blakely, or Booker, such claim also fails. As discussed, both Blakely and Booker were issued after the time of petitioner's guilty plea and sentence. An attorney's failure to predict Blakely or Booker does not constitute the ineffective assistance of counsel. See United States v. Burgess, 142 Fed.Appx. 232, unpublished 2005 Fed.App. 0531N (6th Cir. June 22, 2005) (no ineffective assistance for failing to anticipate Blakely or Booker).
Competence, not prescience, is what the constitution requires. See United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005) ("[W]here developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature. A valid plea agreement, after all, requires knowledge of existing rights, not clairvoyance."); Green v. United States, 65 F.3d 546, 551 (6th Cir. 1995) (lawyer's failure to predict Sixth Circuit's approach to law did not constitute ineffective assistance of counsel); United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir. 1995) ("Defendant faults his former counsel not for failing to find existing law, but for failing to predict future law. We agree . . . that clairvoyance is not a required attribute of effective representation."); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981) (holding that "counsel is normally not expected to foresee future new developments in the law").Conley v. United States, 2005 WL 1420843 (W.D. Mich. June 15, 2005).
Petitioner was advised of his right to appeal at the time of his guilty plea, Transcript, Guilty Plea, at 10-11, and at sentencing:
COURT: Now, Mr. Jackson you have the right to appeal your conviction and sentence, you have the right to have counsel appointed for that purpose, you have the right to have the cost of any such appeal paid for by the government. You also have the right to have the clerk of court file a notice of appeal on your behalf. Please consult with Mr. Nolder and tell me whether you want the clerk to file a notice of appeal.
MR. NOLDER: He is satisfied, Your Honor.
COURT: If you do desire or intend to appeal, you must file a notice within ten days. Do you understand that?
DEFENDANT JACKSON: Yes.
Sentencing Transcript, at 10. However, Petitioner asserts that his attorney thereafter should have discussed with him, after he was sentenced and Blakely was decided within the time period for filing an appeal, whether he wanted to do so.
In Roe v. Flores-Ortega, 528 U.S. 470, 474 (2000), the United States Supreme Court considered the issue of whether a defendant could establish the ineffective assistance of counsel due to his attorney's failure to file an appeal when he had not informed his attorney whether or not he wanted to file an appeal. The Supreme Court discussed in Roe v. Flores-Ortega counsel's duty to consult his client regarding an appeal under such circumstances and thus provides some guidance here. The Supreme Court held in Roe v. Flores-Ortega:
In 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.
* * *
[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.Id., at 478-480 [citations omitted]. Additionally, "counsel's deficient performance must actually cause the forfeiture of the defendant's appeal." Id., at 484.
[T]o show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.Id.
The Court concludes that petitioner has failed to establish the ineffective assistance of counsel due to his attorney's failure to discuss with him whether he wanted to file an appeal after Blakely. The record fails to reflect any non-frivolous grounds for appeal. Even assuming that counsel had a duty to consult with petitioner regarding whether he wanted to file an appeal in view of the Blakely decision, petitioner cannot establish prejudice under such circumstances. As noted above, an appeal on Blakely grounds would have lacked merit. Petitioner likewise has failed to establish a reasonable probability that, but for counsel's failure to consult with him about Blakely, that he would have timely appealed. See Roe v. Flores-Ortega, supra.
IV. REQUEST FOR EVIDENTIARY HEARING
In claim four, petitioner requests an evidentiary hearing. No evidentiary hearing is required where "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Smith v. United States, quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (citation omitted) and citing Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). Such are the circumstances here.In view of all of the foregoing, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED.
If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).