Opinion
No. 3:99CV1-S
February 1, 2001
OPINION
Petitioner Melvin Mathis was charged in a two-count indictment with conspiracy to distribute and to possess with intent to distribute "cocaine base (crack cocaine)" and with aiding and abetting in possessing with intent to distribute "cocaine base (crack cocaine)." Also charged were petitioner's grandmother and his brother, Maurice. Presently before the court is petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. In that regard, petitioner argues: (1) that the government breached the plea agreement when it arbitrarily and capriciously refused to file a motion for reduction of sentence; (2) that his counsel was ineffective when he advised petitioner that "cocaine base" was synonymous with "crack" under the sentencing guidelines; and (3) that his counsel was ineffective when he failed to file an appeal after being instructed to do so.
BACKGROUND
On October 2, 1997, petitioner pled guilty to Count 2, which was set forth in the plea agreement and thereafter summarized by the court at the plea hearing as "possessing more than 50 grams of crack cocaine with intent to distribute it." At that hearing, petitioner agreed with the "essential elements the government would have to prove. . . beyond a reasonable doubt before [he] could be found guilty," namely, (1) that he "knowingly possessed or aided and abetting another in possessing a controlled substance," (2) that the "substance was in fact more than 50 grams of crack cocaine," and (3) that he "possessed the substance with the intent to distribute it." In the factual basis tendered by the government, the quantity and type of drugs was explained again: "A quantity of suspected crack cocaine was seized and submitted to the Mississippi Crime Laboratory, where it was determined to be cocaine base with an aggregate weight of 58.73 grams."
Petitioner also agreed that he understood that the decision regarding whether to file a motion under either 5K1.1 or Rule 35 was "a matter entirely within the discretion of the United States Attorney." Indeed, the court reiterated:
Q. It's important that you understand the Court has no authority or power to order or require the U.S. Attorney to make this motion. It will be strictly and solely up to the U.S. Attorney's office as to whether or not you have rendered such substantial assistance as would justify them in making the motion. As long as you understand that. Do you so understand?
A. Yes, sir.
The court then dismissed the charges against petitioner's grandmother and brother after petitioner accepted full responsibility for the entire quantity of drugs found and agreed to cooperate regarding his brother's independent drug operations. The following colloquy between the court and petitioner ensued:
Q. Melvin Mathis, how do you now plead to the charge in Count 2 of possessing with intent to distribute more than 50 grams of crack cocaine, guilty or not guilty?
A. Guilty.
Q. It is the finding of this court that this defendant is fully competent and capable of entering an informed plea, and that his plea of guilty to Count 2 is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense. His plea to Count 2 is therefore accepted. He is now adjudged guilty of this offense.
On January 28, 1998, the court conducted a sentencing hearing. At that time, the issue of petitioner's cooperation was, at the behest of the government, the first matter addressed. In the words of Assistant United States Attorney Robert Norman, he "want[ed] to explain to the Court. . . why we're not making a downward departure in this case." Mr. Norman then proceeded to enumerate several incidents which had occurred which led to the government's decision. In the first incident, which occurred immediately before petitioner was to testify before the grand jury regarding his brother's activities, petitioner refused to talk to the local agent who had been working with the Drug Enforcement Administration on the case. At that point, Mr. Norman "didn't put him in the grand jury to make my point, that he's not going to split up the law enforcement side of this thing and he's not running the investigation." In the second incident, which occurred just before petitioner's rescheduled grand jury appearance, Mr. Norman "learned that there was a report circulating around the Lafayette County Detention Center that [petitioner] had threatened to kill an inmate and his father. . . who was going to testify against Melvin Mathis had this case gone to trial." In Mr. Norman's estimation, "Threatening a witness is not the kind of behavior that we're going to allow if he's going to be part of our team and be a witness for the government." The government therefore again refused petitioner the opportunity to testify before the grand jury "as long as we have these kinds of problems going on."
In response, counsel for petitioner, Honorable Anthony L. Farese, agreed that there were some problems between petitioner and the local agent, but that petitioner did not "understand that [his comments about the local agent were] detrimental or would be harmful to his ability to go in front of the grand jury." As to the alleged threat, petitioner "vehemently denie[d] making any threats." Nevertheless, counsel advised petitioner "that this would forgo any 5K1.1 motion, and it was in the government's discretion to move for that. And I explained that Mr. Norman, in my opinion, had no choice but to take the position that he is taking." Mr. Farese then recounted his conversation with his client:
I explained to Mr. Mathis that his options were legally as follows: No. 1, to go forward to sentencing; or No. 2, to petition the Court to try to request a withdrawal of the plea, which would probably be unsuccessful. Mr. Mathis took the position that he did not want to withdraw any plea, but he wanted to go forward.
Mr. Farese concluded his statement with the following observation: "I certainly have no complaint with the government's position with regard to not requesting a 5K1, but I wanted the record to reflect that I had discussed this with the defendant and he has chosen to go forward with this sentencing." When asked if that was correct, petitioner answered affirmatively.
The court then found as follows:
[W]hat is alleged to have occurred in the detention center will not be considered by this court in passing sentence here today, because it is disputed and because you haven't had an opportunity. . . to contest it.
The reasons given by the Assistant U.S. Attorney for not making the 5K1.1 motion for downward departure at this stage are reasonable. And the Court does not find that they are arbitrary or capricious in any way.
The court further finds that the defendant, Melvin Mathis, has had it explained to him of why the government is not making a downward departure motion, and that he has elected to go forward with his sentencing at this time. He has knowingly and voluntarily waived any right that he might have, if any there be, to withdraw his plea of guilty.
The court then sentenced petitioner to a term of imprisonment of 120 months.
DISCUSSION
Though the court has gone to great lengths to set forth the underlying proceedings in this case, the only question which is truly at issue is whether counsel was ineffective for failing to file an appeal of petitioner's sentence. Petitioner maintains that he instructed Mr. Farese to appeal, and Mr. Farese either refused or neglected to carry out his instructions. In his 2255 motion, filed January 4, 1999, after acknowledging that the court advised him of his right to appeal his sentence and to the appointment of an attorney if he was indigent (Mr. Farese was retained, not appointed), petitioner stated:
After petitioner felt that his sentence was illegal and plainly unreasonable for having been sentenced under the harsh penalty of "crack cocaine" instead of being sentenced under the guideline of powder cocaine, defendant requested his counsel to appeal his sentence, but counsel felt that defendant-petitioner had no ground for an appeal.
A year later, after the court later ordered petitioner to present evidence "that he instructed his attorney to appeal his sentence and is attorney disregarded those instructions," petitioner's recollection had changed somewhat, and he alleged that he conveyed instructions to appeal (1) immediately after sentencing, and "counsel informed movant that he would do so," and (2) the day after sentencing when "counsel agreed to file the appeal because he felt the government had breached the plea agreement due to the alleged incident report. . ." According to petitioner, at that time, "[i]t was [his] belief that counsel was going to file an appeal after he requested him to do so."
To both the 2255 petition and to the response to present evidence, petitioner also attached an April, 1998, letter from Mr. Farese, stating in pertinent part:
As I was dictating this letter to you this morning, you telephoned my office. . . You requested that I represent you in an appeal and I explained to you that I did not feel that we could obtain any relief in this matter. I therefore declined to represent you because I did not feel that I could be of any help to you.
In a follow-up letter, Mr. Farese stated:
The last time we talked over the phone you had indicated that your family was going to employ a lawyer in Atlanta, Georgia, to represent you further in this matter. I also saw Attorney Mike Walls from Oxford, Mississippi, several weeks ago and he had indicated that you had sent some paperwork to him. My advice to you about obtaining your sentencing transcript and plea transcript is to have your new lawyer obtain those for you.
* * *
I do not feel that you will obtain any relief in this matter. However, I will leave that issue to your new attorney.
In petitioner's estimation:
[H]e had put forth due diligency trying to get his retained counsel to perfect an appeal on his behalf, and counsel has refused to file a timely "Notice of Appeal" and failed or refused to request the court to appoint counsel on his client's behalf for the purpose of an appeal of his client sentence, even if defendant still owed counsel money on the retainer fee, it was counsel's duty to see that defendant's appeal was perfected.
Throughout all of the documents which petitioner has submitted, he has never wavered in his belief that he clearly instructed his attorney to file an appeal of his sentence. It is less clear, however, whether his counsel, who was retained for trial purposes but apparently not for appellate purposes, was (1) under the same impression, and (2) constitutionally required to act beyond his contractual obligations. In the first regard, the court can, from the record before it, make sufficient deductions to conclude that counsel believed he had adequately advised petitioner that he was not going to appeal the sentence. The court finds it difficult to believe that Mr. Farese, one of the more experienced criminal defense attorneys practicing before this court, would stand before the court one day and state that he had "no complaint with the government's position with regard to not requesting a 5K1," and the very next day tell his client that "he felt the government had breached the plea agreement due to the alleged incident report." Rather, the court finds petitioner's recollection in his original petition probably to be closer to the truth, i.e., he told Mr. Farese to appeal, and Mr. Farese declined.
This brings the court to the second point. Certainly, if counsel had been appointed to represent petitioner in the criminal proceedings, then the appointment would have covered all appellate proceedings as well. In that situation, if petitioner had clearly and unambiguously instructed Mr. Farese to appeal, then he would have been required to follow those instructions even if petitioner had no meritorious grounds for appeal. Roe v. Flores-Ortega, 528 U.S. ___, 120 S.Ct. ___ 145 L.Ed.2d 985, 995 (2000). In that situation, Anders would allow counsel to withdraw from further pursuit of a frivolous appeal, Anders v. California, 386 U.S. 738 (1967), since a "lawyer may not ignore his or her ethical obligations. . [and] consume the time and energies of the court or the opposing party by advancing frivolous arguments." McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436 (1988). This applies equally to retained counsel, as any "attorney, whether appointed or paid, is. . . under an ethical obligation to refuse to prosecute a frivolous appeal." Id. Obviously, Mr. Farese had this in mind when he continued to refuse to appeal petitioner's sentence. Up to that point, counsel's refusal did not violate petitioner's constitutional right to appeal, for "[w]hen retained counsel concludes that an appeal would be frivolous, he or she has a duty to advise the client that it would be a waste of money to prosecute the appeal and that it would be unethical for the lawyer to go forward with it." Id. at 437. Mr. Farese did not, however, take the crucial next step: Once retained counsel has concluded that an appeal would be wholly frivolous, he must formally withdraw from further representation. Id. at 437-39. In this manner, all concerned know that the attorney is not going to file a notice of appeal, thereby allowing the defendant the opportunity either to retain substitute counsel, to request status as an indigent and the appointment of counsel, or to proceed with his appeal on his own.
With that said, the court has no recourse but to allow petitioner to take an out-of-time appeal in his criminal case. The remaining issues which implicate the length of petitioner's sentence should be addressed in the appeal. An appropriate order shall issue.
ORDER GRANTING 2255 MOTION AND ALLOWING OUT-OF-TIME APPEAL IN CAUSE NUMBER 3:97CR83-S
Pursuant to an opinion issued contemporaneously herewith, it is ORDERED:
That the motion of Melvin Mathis to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is granted to the extent that he may take an out-of-time appeal in Cause Number 3:97CR83-S;
That Mathis shall have until Thursday, February 15, 2001, in which to file a notice of appeal.