Opinion
1:12cr159 1:13cv555
07-24-2014
JUSTIN DEONTA STROM, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
This case is before the Court on Petitioner Justin Deonta Strom's ("Petitioner") Amended Motion to Vacate Under 28 U.S.C. § 2255. [Dkt. 129.] The Court held an evidentiary hearing in this matter on May 27, 2014, (Hr'g Tr. [Dkt. 149] 3:1-4), at the conclusion of which it took Petitioner's motion under advisement. For the reasons set forth below, the Court will grant in part and deny in part Petitioner's motion.
I. Background
In April 2012, a federal grand jury returned a ten count indictment charging Petitioner with sex trafficking of a child and several related offenses. (Indictment [Dkt. 47] at 1-2.) These charges stem from Petitioner's involvement in a prostitution ring that recruited underage women to engage in commercial sex acts. (Id. at 2.) On June 26, 2012, pursuant to a written plea agreement, Petitioner pled guilty to one count of sex trafficking of a child. (Plea Agreement [Dkt. 67] at 1.)
The Court conducted a sentencing hearing on September 14, 2012. (Sentencing Mins. [Dkt. 77] at 1.) Following arguments, the Court sentenced Petitioner to 480 months incarceration. (Id.) Petitioner did not appeal.
On May 3, 2013, Petitioner filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Mot. to Vacate [Dkt. 84] (as paginated by CM/ECF) at 1.) Among the many factual allegations, Petitioner claimed that trial counsel failed to notice an appeal on his behalf despite his explicit instruction that he wanted to appeal. (Id. at 16-17.) Recognizing that this allegation typically necessitates an evidentiary hearing, the Court appointed counsel to represent Petitioner and requested an amended motion to clarify his pro se claims. (Mem. Op. [Dkt. 122] at 6, Dec. 4, 2013.)
On January 27, 2014, Petitioner, acting with counsel, filed an Amended Motion to Vacate Under 28 U.S.C. § 2255. (Am. Mot. to Vacate at 1.) Petitioner's amended motion contains the following additional grounds for relief: (1) trial counsel rendered ineffective assistance by failing to advise Petitioner that the Court would consider uncharged conduct and conduct contained in the dismissed counts during sentencing; and (2) trial counsel failed to file an appeal despite Petitioner's "unequivocal" instructions to the contrary. (Mem. in Supp. of Am. Mot. to Vacate [Dkt. 129-1] at 4-7.) The Court will limit its analysis to Petitioner's claim that counsel failed to notice an appeal because, as discussed below, the Court's judgment on this issue prohibits review of his remaining claims.
The parties appeared for an evidentiary on May 27, 2014. (See Hr'g Tr. 3:1-4.) Petitioner called several witnesses who testified that he instructed counsel to file an appeal following sentencing. (Id. at 18:6-20, 25:3-18, 26:13-21, 28:6-29:8, 39:5-40:16.) In opposition, the Government presented Petitioner's former trial counsel, Tom Carter ("Carter"). (Id. at 50:17-51:9.) Carter testified that although Petitioner asked to appeal immediately following his sentence, Petitioner relented on this request after counsel informed him that he had waived his right to appeal and this would hinder any efforts for a Rule 35 motion. (Id. at 75:7-76:25.) Carter purportedly told Petitioner "we're going to stay the course" since "you're a good candidate for a Rule 35," and "his response was effectively, [o]kay [y]ou know, you better be right, kind of a thing." (Id. at 75:14-22.)
Having been fully briefed and argued, Petitioner's Amended Motion to Vacate Under 28 U.S.C. § 2255 is now before the Court.
II. Analysis
A. Failure to Notice Appeal
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the two part test set out in Strickland v. Washington, 466 U.S. 668 (1984). This requires showing that (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. Judicial scrutiny of counsel's performance is "highly deferential," and the Court must avoid second guessing counsel's strategy for obtaining a favorable result for the client. Id. at 689. The burden is on the petitioner to prove, by a preponderance of the evidence, that counsel's performance was unreasonable. Id. at 687-88.
When a criminal defendant instructs counsel to file an appeal and the appeal is not filed, counsel is considered per se ineffective. See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). The Fourth Circuit has interpreted Flores-Ortega to mean that "an attorney is required to file a notice of appeal when unequivocally instructed to do so by his client, even if doing so would be contrary to the plea agreement and harmful to the client's interests." United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007). Poindexter requires the district court to first determine whether the defendant unequivocally instructed his attorney to file a notice of appeal. If counsel was not so instructed, the court must then determine if defendant has met "his burden of showing that: (1) his attorney had a duty to consult [with him regarding an appeal] under Flores-Ortega; (2) his attorney failed to fulfill his consultation obligations; and (3) he was prejudiced by his attorney's failure to fulfill these obligations." Poindexter, 492 F.3d at 273.
Conflicting testimony was heard at the evidentiary hearing as to whether Petitioner unequivocally requested Carter to file an appeal immediately after his sentencing hearing on September 14, 2012. While Petitioner testified that he and his parents did ask for an appeal, ( see Hr'g Tr. 25:3-18, 28:6-29:8, 39:5-40:16), Carter's testimony that Petitioner relented on this point after discussing the implications of such action is more credible, (Id. at 75:7-76:25). What appears undebatable, however, is that Petitioner later attempted to contact Carter's office and mailed a letter asking him to notice an appeal before the fourteen-day deadline. (Hr'g Tr. 28:6-29:8, 39:5-40:16, 77:14-89:6); see Fed. R. App. P. 4(b)(1)(A) ("[A] defendant's notice of appeal must be filed in the district court within 14 days after . . . the entry of either the judgment or the order being appealed[.]"). Carter's billing records confirm that Petitioner sent such a letter. (See Hr'g Tr. 76:23-77:3; Gov't Ex. 4.) Although Carter was apparently traveling when Petitioner's letter arrived, (Hr'g. Tr. 77:14-89:6), this does not discharge his obligation to remain available to Petitioner during this brief window to notice an appeal. See Corral v. United States, 498 F.3d 470, 473 (7th Cir. 2007) (noting that defense counsel should remain reasonably available to his client during the window for filing a notice of appeal). While Carter was not required to maintain a vigil at the office, he should have taken the de minimis step of arranging a contingency plan in the event Petitioner contacted his office regarding an appeal, especially given Petitioner's trepidation regarding the sentence and his prior requests for an appeal. In addition, after Carter reviewed Petitioner's letter demanding an appeal on October 2, 2014, he took no action to get an extension of time to notice a late appeal. (Hr'g Tr. 89:14-90:11.) Nor did counsel contact Petitioner to advise him of what steps would be necessary to file a late appeal. (Id.) On this evidence, the Court finds that Carter was instructed to file an appeal and his failure to take any action or contact Petitioner was per se ineffective. As such, the appropriate remedy is to vacate the original judgment and enter a new judgment from which an appeal can be taken. See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
Even assuming Petitioner did not unequivocally request an appeal within the applicable time period, the result would be the same because the Court finds that under these facts counsel failed to remain reasonably available to Petitioner or consult with him following sentencing as required under Poindexter. See Rohrvaugh v. United States, Nos. 2:09cv39, 2:06cr19, 2011 WL 1231171, at *6-9 (N.D. W. Va. Mar. 10, 2011), report and recommendation adopted by, 2011 WL 1193384 (N.D. W. Va. Mar. 30, 2011).
B. Petitioner's Remaining Claims
With regard to Petitioner's remaining claims, the Fourth Circuit, in United States v. Killian, 22 F. App'x 300 (4th Cir. 2001), instructed that when a district court grants a § 2255 motion due to counsel's failure to file a direct appeal, the court may not consider the merits of any of the remaining claims in the § 2255 motion, but must instead dismiss those claims without prejudice. Id. at 301. Accordingly, the Court will dismiss the balance of Petitioner's claims without prejudice, and Petitioner shall be permitted to file another habeas motion, if necessary, following the resolution of his direct appeal. Id.
III. Conclusion
For the reasons stated herein, Petitioner's motion is granted in part as to his claim that counsel rendered ineffective assistance by failing to file a direct appeal upon request. Petitioner's remaining claims are denied without prejudice. An appropriate order will follow. July 24, 2014
Alexandria, Virginia
__________
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE