Opinion
5:15-CR-16-D-1 5:16-CV-273-D
01-26-2018
WESLEY RUSSELL FULLER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
This case comes before the court on the petition by petitioner Wesley Russell Fuller ("petitioner") (D.E. 20) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). The government filed a motion (D.E. 24) to dismiss. By order entered 12 April 2017, the court granted the government's motion in part and denied it in part, dismissing all of petitioner's claims except his claim for ineffective assistance of counsel for failure to file an appeal as instructed. 12 Apr. 2017 Ord. (D.E. 29) 6. The court referred this claim to the undersigned magistrate judge for the conduct of an evidentiary hearing and issuance of a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings. 12 Apr. 2017 Ord. 6. An evidentiary hearing was held on 24 October 2017. See Minute Entry dated 24 Oct. 2017 (D.E. 49). For the reasons stated below, it will be recommended that the failure-to-appeal claim be dismissed.
The court uses the terms "petition" and "motion" interchangeably herein to refer to petitioner's requests under § 2255 and such requests generally.
In support of his petition, petitioner filed: a memorandum (D.E. 20-1); a declaration by himself ("Pet'r's Decl.") (comprising pp. 4-5 of D.E. 20-2); a declaration by his mother, Susan Fuller ("Fuller's Decl.") (comprising pp. 2-3 of D.E. 20-2); a declaration by one of his sisters, Nancy Collins ("Collins's Decl.") (comprising pp. 6-7 of D.E. 20-2); and state criminal records relating to petitioner (D.E. 20-3). Although the declarations are denominated as affidavits, they lack a notarial certification that they were made under oath, but do contain language stating that they were made under penalty of perjury sufficient under 28 U.S.C. § 1746(2) (providing that in federal cases a writing containing a signed statement in substantially the form "I declare (certify, verify, or state) under penalty of perjury that the foregoing is true and correct" shall be of like force and effect as if sworn). See Matsuda v. Wada, 101 F. Supp. 2d 1315, 1322-23 (D. Haw. 4 Aug. 1999) (finding sufficient under 28 U.S.C. § 1746 the statement that "I declare under penalty of perjury that the foregoing is true and correct."). The government filed a memorandum (D.E. 25) in support of its motion to dismiss, and petitioner a response (D.E. 28). Citations to page numbers in the foregoing documents and all other documents in the record are to those assigned by the court's CM/ECF electronic filing system.
BACKGROUND
I. PETITIONER'S CONVICTION AND SENTENCE
On 12 January 2015, petitioner was charged in a single-count criminal information (D.E. 1) with conspiring to distribute and possessing with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B) and 846. Geoffrey Ryan Willis ("Willis") filed his notice of appearance as petitioner's counsel on 20 January 2015. See Willis's Appear. Notice (D.E. 6). On 11 March 2015, petitioner pleaded guilty, pursuant to a plea agreement, to the single charge in the criminal information. Minute Entry dated 11 Mar. 2015 (D.E. 9); Plea Agree. (D.E. 10).
The presentence investigation report ("PSR") determined petitioner's guideline range to be 168 to 210 months, based on an offense level of 33 and criminal history category of III. PSR (D.E. 13) ¶¶ 20, 56, 58. At sentencing on 16 June 2015, the court adopted this guideline range, but allowed the government's motion (D.E. 16) for a downward departure, pursuant to U.S.S.G. § 5K1.1. Tr. of Sent. Hr'g ("Sent. Tr.") (D.E. 53) 10:20-23; 16:22-23. The court sentenced petitioner to 132 months' imprisonment and 4 years' supervised release. Sent. Tr. 30:10-20; J. (D.E. 18) 2-3. Petitioner did not appeal his conviction or sentence.
II. THE § 2255 PETITION
In his petition, executed under penalty of perjury, petitioner asserted the following six claims, as identified by the court in its 12 April 2017 order:
(1) ineffective assistance of counsel for failing to object at sentencing to a two-level enhancement under [United States Sentencing Guidelines Manual ("U.S.S.G.")] § 3C1.2 for reckless endangerment and to argue that the enhancement breached the plea agreement; (2) that the enhancement under U.S.S.G. § 3C1.2 is vague and unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015); (3) ineffective assistance of counsel for failing to file a motion to suppress and argue that law enforcement officers violated the Fourth Amendment while investigating [petitioner]; (4) ineffective assistance of counsel for advising [petitioner] that he could not transfer his firearms to his father instead of forfeiting them; (5) ineffective assistance of counsel for not arguing that Probation incorrectly calculated [petitioner's] advisory guideline range in the [PSR]; and (6) ineffective assistance of counsel by failing to file a notice of appeal as directed.12 Apr. 2017 Ord. 2. As noted above, the sole claim presently at issue is the sixth claim.
III. POST-REFERRAL PROCEEDINGS ON THE § 2255 PETITION
As noted, petitioner's failure-to-appeal claim was referred to the undersigned magistrate judge on 12 April 2017. See 12 Apr. 2017 Ord. 6. By order entered 20 April 2017 (D.E. 32), the court directed the Federal Public Defender to appoint counsel for petitioner for purposes of the hearing on his failure-to-appeal claim. On 25 April 2017, Carol Ann Zanoni entered her appearance as counsel for petitioner. See Zanoni's Appear. Notice (D.E. 33).
The hearing was initially set for 9 May 2017. See 14 Apr. 2017 Ord. (D.E. 30). However, pursuant to a series of three uncontested motions by petitioner, the hearing was continued to 24 October 2017. See Continuance Ords. (D.E. 37, 42, 47).
At the hearing, petitioner himself testified and presented the testimony of two sisters of his, Nancy Collins ("Collins") and Susan Tracey Miller ("Miller"), and his mother, Susan Fuller ("Fuller"). See Tr. of § 2255 Hr'g ("§ 2255 Tr.") (D.E. 51) 4:1 to 36:10. The government presented the testimony of Willis. Id. at 36:12 to 53:19. The court admitted four exhibits: (1) the 23 September 2013 agreement for legal services between petitioner and Willis ("Fee Agree.") (Pet'r's Ex. 1); (2) text messages exchanged between Willis and petitioner's mother ("Text Messages") (Pet'r's Ex. 2); (3) petitioner's declaration in support of his petition (Gov.'s Ex. 1); and (4) the memorandum of plea agreement between petitioner and the government (Gov.'s Ex. 2). § 2255 Tr. 18:21-22; 31:1-4.
APPLICABLE LEGAL PRINCIPLES
I. STANDARD OF REVIEW FOR § 2255 MOTIONS
Pursuant to § 2255, a prisoner may seek correction or vacation of a sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A § 2255 motion must be filed within one year from the latest of:
(1) the date on which the judgment of conviction becomes final;28 U.S.C. § 2255(f).
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
"[T]he burden of proof is on the petitioner to establish his [§ 2255] claim by a preponderance of the evidence. Albarran-Rivera v. United States, No. 7:10-CR-95-FL-3, 2013 WL 5570956, at *7 (E.D.N.C. 9 Oct. 2013) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) ("Because the proceeding under 28 U.S.C. § 2255 is a civil collateral attack upon the judgment of conviction, the burden of proof is upon petitioner to establish [his claim] by a preponderance of evidence . . . .")). Generally, an evidentiary hearing is required under § 2255 "[u]nless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief." United States v. Rashaad, 249 F. App'x 972, 973 (4th Cir. 2007) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
To state a claim of ineffective assistance of counsel, a petitioner must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). First, a petitioner must show that the representation he received fell below an objective standard of reasonableness. Id. at 688. The reviewing court must be "highly deferential" of counsel's performance and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689. Therefore, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. Further, "[a] petitioner seeking post-conviction relief bears a heavy burden to overcome this presumption, and the presumption is not overcome by conclusory allegations." Hunter v. United States, Civil No. 1:09cv472, Crim. No. 1:06cr251-3, 2010 WL 2696840, at *3 (W.D.N.C. 6 July 2010).
Concerning the second prong, a petitioner must demonstrate that he was prejudiced by the ineffective assistance. Strickland, 466 U.S. at 692. Specifically,
[t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Id. at 694. The court may address the prejudice prong before the performance prong or even address only one prong if the petitioner has made an insufficient showing on the other prong. Id. at 697.
The Strickland test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. Defense counsel has a duty to file an appeal if unequivocally instructed to do so by the defendant. United States v. Poindexter, 492 F.3d 263, 268 (4th Cir. 2007). "We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969)). "[A] defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice." Id. Where an attorney does not file an appeal as unequivocally instructed by his client, prejudice is presumed, even if the appeal would not have been successful, because it effects forfeiture of the appellate proceeding. Poindexter, 492 F.3d at 268.
III. DETERMINING CREDIBILITY
In assessing the credibility of witnesses, trial courts consider "variations in demeanor and tone of voice." Anderson v. City of Bessemer, N.C., 470 U.S. 564, 575 (1985). In addition, "[d]ocuments or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it." Id.; see also United States v. Marcavage, 609 F.3d 264, 281 (3rd Cir. 2010) (applying factors in Anderson in holding that trial court's crediting of the government's evidence was error on the grounds that "[t]here are simply too many inconsistencies and gaps in the testimony of the government's witnesses, not to mention substantial contradictions between that testimony and other evidence in the record"). Additional considerations can include the witness's motive to lie and the level of detail in the witness's statements. See, e.g., United States v. Wilson, 624 F.3d 640, 665 (4th Cir. 2010).
ANALYSIS
I. § 2255 HEARING TESTIMONY
A. Petitioner's Testimony
Petitioner testified as follows: Petitioner retained Willis to represent him in the underlying case (§ 2255 Tr. 4:11-13) and signed an agreement for legal services (id. at 6:5-23; Fee Agree.). Petitioner and Willis spoke about the possibility of going to trial, but Willis advised petitioner that a trial might not result in a good outcome. § 2255 Tr. 7:9-12. Willis presented petitioner with a plea agreement and told him it was his best option. Id. at 7:18-19; see also Plea Agree. Willis did not tell him that he could plead to the charges without a plea agreement. § 2255 Tr. 7:18-23.
Prior to sentencing, petitioner and Willis talked about their hope that petitioner would be sentenced to between 84 and 108 months' imprisonment. Id. at 4:14-22. Petitioner was not sentenced within this range. Id. at 5:2-4. Willis and petitioner spoke right after petitioner was sentenced for seven to ten minutes about the length of petitioner's sentence, and petitioner instructed Willis to file an appeal. Id. at 5:7-22; 10:15-18. This is the only time petitioner told Willis to file an appeal. Id. at 16:4-10. Willis then told petitioner that while there was a small issue with the criminal history information in the PSR, it would not make a difference, and it would be a waste of time and money to appeal. Id. at 5:17-20; see also id. at 9:22 to 10:6. Petitioner never saw or communicated with Willis thereafter. Id. at 5:23-6:4. But see id. at 13:14 to 14:4.
The only discussion Willis had with petitioner regarding an appeal was in the conversation directly after sentencing. Id. at 8:1-2. Willis did not tell petitioner that title 18 of the U.S. Code gives the defendant the right to appeal, that he could appeal if his sentence was above the applicable guidelines, or that a notice of appeal had to be filed within 14 days of the entry of the criminal judgment. Id. at 8:6-18. Nor did Willis inform petitioner of the following: (1) that he could protect his right to appeal by filing a notice of appeal; (2) that the Fourth Circuit looks only at transcripts on appeal; (3) that the Fourth Circuit does not accept new evidence; and (4) that there was no guarantee that he would receive a new hearing if he appealed. Id. at 8:16 to 9:2.
In support of his motion, petitioner filed his own "affidavit" (Pet'r's Decl.), which he drafted himself (id. at 16:16-23) and signed under oath (id. at 11:7-16). The "affidavit" discussed how Willis advised petitioner against pursuing an appeal and that petitioner had requested Willis to file an appeal. Id. at 12:12 to 13:1; Pet'r's Decl. ¶ 5. The "affidavit" does not say that petitioner gave this instruction in the meeting immediately after sentencing. § 2255 Tr. 12:20 to 13:1. Petitioner told his parents to follow up with Willis to make sure he was filing the appeal. § 2255 Tr. 13:9-10. After sentencing, petitioner wrote to Willis, but did not ask about an appeal. Id. at 13:14 to 14:4.
Petitioner and Willis both signed petitioner's plea agreement, which Willis went over with petitioner and petitioner indicated he understood. Id. at 14:14 to 15:4; Plea Agree. The plea agreement included an appeal waiver. § 2255 Tr. 15:8-21. However, petitioner thought the appeal waiver pertained to appealing the plea agreement. Id. at 17:4-14.
B. Collins's Testimony
Collins testified as follows: She is a sister of petitioner and a nurse employed at Blue Cross Blue Shield of North Carolina as a medical review analyst. Id. at 19:7-11. The only time Collins discussed an appeal with Willis was outside the courtroom after petitioner's sentencing hearing. Id. at 20:7-9. She had not met with petitioner before speaking with Willis. Id. at 21:19-22; 22:9-13. Specifically, she asked Willis, "When can we file an appeal?" Id. at 20:15. Willis responded to the effect that, in Collins's words, "there's no appeal or there is nothing to appeal." Id. at 20:16- 18. Collins took this to mean that an appeal could not physically be filed. Id. at 20:19 to 21:3. Collins did not speak to Willis regarding an appeal thereafter. Id. at 21:4-6.
C. Miller's Testimony
Miller testified as follows: Miller is also a sister of petitioner. § 2255 Tr. 24:18-20; 35:22-25. She has been a teacher for 14 years and has one bachelor's degree in psychology, another bachelor's degree in middle grades education, and a master's degree in gifted education. Id. at 23:22-25. Miller was present at the post-sentencing discussion between Willis and Collins. Id. at 24:23 to 25:15. She remembered that after exiting the courtroom someone asked what was next. Id. at 25: 2. Willis shook his head and motioned the group toward the elevators. Id. at 25:2-6.
After exiting the elevators on a different floor, Willis took them to an area left of the elevators, and Collins asked, "When and how do we appeal?" Id. at 25:4-8. Willis started to shake his head and said "There is no appeal." Id. at 25:9-10. Miller then stated, "Look, it's not about the money, we will get the money, we will find the money, we will figure this out." Id. at 25:11-13. Willis responded, "No, it is not about the money. [Petitioner] signed the agreement. There is no appeal." Id. at 25:14-15. Miller took Willis's answer to mean the court process was over with no option of doing anything further. Id. at 25:16-23. Miller had not spoken to petitioner between the time of sentencing and speaking with Willis. Id. at 26:6-12.
D. Fuller's Testimony
Fuller testified as follows: She is petitioner's mother. Id. at 26:22-24. Fuller is retired and used to work for the Environmental Protection Agency and the National Institute of Environmental Health Sciences. Id. at 26:25 to 27:11. Fuller was present at both petitioner's sentencing and the subsequent discussion Collins and Miller had with Willis. Id. at 27:13-19. She did not speak directly with Willis at the time, but agreed with Collins and Miller that money was not an issue and wanted to know if appealing was an option. Id. at 27:20 to 28:5.
On 25 June 2015, Fuller had the following text message exchange with Willis:
[Fuller:] Good morning [Willis]. Our family and of course [petitioner], are wondering if there is any appeal process for the added years that were given because of the enhancements that were added to the plea. It seems very unfair that the plea that [petitioner] agreed to and could not change after signing, could then be added to by the DA to increase the sentence. Also, please let us know about the release of the guns. Thank you.Text Messages (ellipses original); see also § 2255 Tr. 28:11 to 30:4; 31:10 to 32:25.
[Willis:] The short answer is that there is an appeal process but that it would not help. The plea agreement limits the issues that can be raised on appeal. If [petitioner] needs to talk to me about appeals we need to set up a phone call. I talked to him about it before and after his sentencing, but it is complicated.
[Fuller:] OK. He asked me about contacting you yesterday when I talked to him. I will pass this info on to him today. I don't know how to set up a phone call with you and him. If he wants to do that I will contact you. Anything about guns? If this unfair law is changed or anything that would affect [petitioner's] release would you please send me an email. Thanks . . . His children's loss breaks my heart . . .
[Willis:] I'm waiting to hear back from the U.S. Attorneys office. I've sent a list of the guns [petitioner] wants back. If any laws change to [petitioner's] benefit I will let you know. When that happens the court sets up a process to identify all defendants who qualify.
Fuller: Thank you very much.
In the plea agreement, the parties agreed to an upward adjustment of two offense levels for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). Plea. Agree. ¶ 48. The calculation of the guideline range in the PSR includes this enhancement (PSR ¶ 48), but also a two-level enhancement for endangerment during flight under U.S.S.G. § 3C1.2 (PSR ¶ 51) and the addition of two points to the criminal history computation for commission of the charged offense while on state probation under U.S.S.G. § 4A1.1(d) (PSR ¶ 19). Application of these provisions in the guideline calculation increased the offense level from 31 to 33, the criminal history category from II to III, and thereby the guideline range from 121-151 months to 168-210 months. Although petitioner initially objected to application of § 3C1.2 (PSR 14 ¶ 1), he withdrew that objection at sentencing (Sent. Tr. 10:16-19). The court overruled his objection to application of § 4A1.1(d). Id. at 9:24 to 25:11. In its 12 April 2017 order on the petition, the court rejected petitioner's challenges relating to application of § 3C1.2 and § 4A1.1(d) in calculation of his guideline range. 12 Apr. 2012 Ord. 3, 4-5.
On 28 July 2015, Fuller sent an additional text message to Willis stating:
Good morning [Willis]. We were wondering if you have found out about the guns and cross bow that were taken from [petitioner's] house. We do want to come and get them. Please let me know what to do. Thanks.Text Messages.
Fuller relayed the contents of the text message exchange to petitioner. § 2255 Tr. 33:1-18. Fuller did not reach out to Willis to discuss an appeal thereafter. Id. at 35:3-10. Prior to sentencing, Fuller and her husband asked about an appeal, but nothing specific was discussed at that time. Id. at 30:7-14.
E. Willis's Testimony
Willis testified as follows: Willis has been a licensed attorney in North Carolina since 2004. § 2255 Tr. 36:18-24. Willis started his career in the Wake County District Attorney's Office in September 2004. Id. at 37:2-3. He worked there for two years and then took a job with Manning & Crouch, a local criminal defense firm in Raleigh, North Carolina. Id. at 37:3-6. He worked there from 2006 to 2009 before going into solo practice for a year. Id. at 37:6-8. In 2010, he partnered with Daniel Johnson. Id. at 37:8-9. They worked together for a year until Willis left the firm and formed his current business partnership with Christian Dysart. Id. at 37:9-10. When in private practice, Willis has worked on both federal and state criminal cases. Id. at 37:12-16.
In preparation for the hearing, Willis reviewed the file he maintained regarding petitioner's case, which contained the court filings, docket sheet, correspondence between Willis and petitioner, PSR's, plea agreements, information used in the case, and his notes. Id. at 38:4-15. Willis also reviewed text messages exchanged between himself and petitioner's family. Id. at 38:15-18.
As set out below, Willis testified that there were two versions of each the PSR and the plea agreement.
Petitioner retained Willis in what started as a state criminal case in which petitioner was charged with trafficking cocaine. Id. at 38:23-24. It quickly became apparent that the case would be federally prosecuted. Id. at 38:25 to 39:1. Willis reviewed the plea agreement with petitioner. Id. at 39:7-8. He specifically went over the appeal waiver in the plea agreement with petitioner. Id. at 40:4-7.
There were two versions of the plea agreement. Id. at 39:25 to 40:3. The reason for two plea agreements was to account for the change in the prosecutor in petitioner's case. Id. at 39:20 to 40:1. When the second Assistant U.S. Attorney took over the case, he signed a second plea agreement containing the same terms as the original. Id. at 39:20 to 40:1.
Willis saw several benefits to petitioner from pleading pursuant to the plea agreement. Id. at 40: 8 to 42:24. If petitioner pleaded guilty, the government agreed not to proceed with a count charging him with violation of 18 U.S.C. § 924(c) (making it a crime to use or carry a firearm during and in relation to a federal drug trafficking crime or to possess a firearm in furtherance of such a crime). Id. at 41:8-12. The plea agreement also included language addressing cooperation by petitioner with law enforcement (see Plea Agree ¶ 4.d), and Willis was hoping that, given petitioner's cooperation, the government would file a motion for downward departure at sentencing. Id. at 41:16-19. Subsequently, at sentencing, the government did, in fact, make a motion for downward departure, which the judge granted. Id. at 42:15-21. Thus, petitioner's sentence fell below the guideline range. Id. at 42:22-24.
The PSR states that a reliable source of information "stated that [defendant] armed himself with a semi-automatic pistol when dealing drugs" and that defendant himself admitted that "he sometimes carried a 10 millimeter pistol on drug deals." PSR §§ 4, 7. But see Sent. Tr. 21:12-19 (defendant's statement to the court that he did not carry a 10-millimeter Glock pistol with him to protect his drugs and drug transactions, as the source of information had reported).
At sentencing, the judge found petitioner's guideline range to be 168 to 210 months, which was the same as that provided in the final draft of the PSR. Id. at 41:20 to 42:1. The first draft of the PSR provided a guideline range of 210 to 268 months. Id. at 42:1-2. The change in the guideline range in the PSR was a result of conversations Willis had with the U.S. Attorney's Office and the U.S. Probation Office in which they agreed to remove a two-level enhancement for maintaining a premises or dwelling for keeping controlled substances. Id. at 42:5-11.
Prior to sentencing, Willis spoke with petitioner regarding an appeal. Id. at 43:1-3. Specifically, he spoke with petitioner about an appeal when petitioner signed each version of the plea agreement. Id. at 43:5-7. Willis also met with petitioner in the Franklin County Jail several times prior to sentencing to go over the PSR. Id. at 43:12-14. The last such meeting was the night before sentencing to go over the two-level enhancement being removed and the new guideline range. Id. at 43:14-17. Willis also discussed with petitioner what to expect at sentencing. Id. at 43:17-18.
At sentencing, Willis was disappointed that the judge did not apply the lower sentence Willis and petitioner had expected. Id. at 43:20-22. However, with the appeal waiver, there was not a significant chance that the sentence would be overturned. Id. at 43:23-25.
Willis explains to all of his clients the absolute right to file an appeal regardless of the appeal waiver. Id. at 44:1-3. In the past when clients have requested Willis to file an appeal despite the presence of an appeal waiver, Willis has filed the appeal. Id. at 44:4-11.
However, Willis saw potential downsides to filing an appeal in petitioner's case. Id. at 44:12-22. Specifically, because the judge granted the government's motion for downward departure, if the appeal was granted and a new sentencing hearing was ordered, the government might not make another motion for downward departure, and the judge would not be bound to sentence petitioner in the same manner he had before. Id. at. 44:15-22. Willis did not remember going through each downside with petitioner. Id. at 44:25 to 45:1.
Shortly after sentencing but before speaking with petitioner, Willis walked petitioner's family through what had happened during sentencing, but also explained that he needed to talk to petitioner before he was transported back to a jail. Id. at 45:10-14. Willis did not specifically recall one of petitioner's sisters asking about an appeal or his explaining to the family the prospects of success of an appeal. Id. at 45:18-25. Willis remembered that there may have been another conversation with petitioner's family outside the courthouse after he had spoken with petitioner. Id. at 46:1-7.
Willis then spoke with petitioner in the U.S. Marshal's Office in the attorney meeting rooms. Id. at 46:8-11. He spoke with petitioner about the possibility of an appeal. Id. at 46:12-14. Willis and petitioner were disappointed that the judge did not reduce petitioner's sentence below the guideline range as much as they had hoped, but given the fact that petitioner had received a downward departure and that his plea agreement contained an appeal waiver, Willis did not see any grounds for an appeal. Id. at 46:16-20. However, if petitioner had wanted Willis to file a notice of appeal, he would have done so. Id. at 46:20-21. Willis would not have filed a notice of appeal in a case in which a client had told him specifically that he did not want to appeal. Id. at 51:9-14. If there had been any ambiguity in petitioner's decision to appeal, Willis would have followed up with him. Id. at 51:14-15. Petitioner acknowledged that he did not want Willis to file an appeal. Id. at 46:24 to 47:8. There was no doubt in Willis's mind that petitioner understood that the result obtained was the best result he was going to obtain and that there was no reason to appeal. Id. at 47:1-4.
Petitioner later wrote letters to Willis, but never raised the issue of an appeal. Id. at 47:9-16. After sentencing, Willis also communicated with petitioner's mother via text messages. Id. at 47:17 to 49:2. This was the only communication Willis had with petitioner's family after the day of sentencing. Id. at 49:11-22. Willis interpreted the text message exchange as the family asking about the process, but held the view that if petitioner wanted to appeal, he needed to hear from petitioner. Id. at 50:4-6.
No one directed Willis to file an appeal on behalf of petitioner. Id. at 50:12-14. Nor did Willis receive any correspondence or telephone calls from petitioner indicating he wanted to revisit his decision not to appeal. Id. at 50:15-21.
Willis did not reach out to petitioner after receiving the text messages from petitioner's mother because it was his understanding that his mother was in regular contact with him. Id. at 51:23 to 52:1. It would have been possible for Willis to communicate with petitioner if he had received a response back from his mother indicating that petitioner wanted to talk to him about appealing. Id. at 52:1-5. Willis had not previously used petitioner's mother to communicate with petitioner, but before sentencing, communicating with petitioner directly had not been an issue. Id. at 52:6-10. Moreover, Willis did not reach out to petitioner because, in accordance with his last conversation with petitioner, petitioner had told him he did not wish to file an appeal. Id. at 52:11-14.
Willis never sent petitioner a written document explaining the appellate process. Id. at 52:25 to 53:5. As with every client, Willis explained that it was petitioner's decision whether to go to trial, and whether to plead with or without a plea agreement. Id. at 53:6-15.
II. COUNSEL'S ALLEGED VIOLATION OF DUTY TO FILE AN APPEAL
The court finds that petitioner has failed to establish by a preponderance of the evidence that he unequivocally instructed Willis to file an appeal. Fundamental to the court's conclusion is that it finds Willis's testimony on the material factual issues to be credible and petitioner's contrary testimony not credible.
Among other reasons, Willis's testimony was matter-of-fact and not adversarial in tone. He evinced no hostility, but rather genuine concern about achieving the best possible outcome in petitioner's criminal case. He even referred to petitioner's family as "great." Id. at 46:6-7. His credibility is further supported because of his substantial experience as a criminal defense attorney. See id. at 36:18 to 37:16.
Moreover, Willis has filed notices of appeal in the past. Id. at 44:4-11. Thus, filing a notice of appeal on petitioner's behalf would not have been an unfamiliar, potentially off-putting task, but a matter of routine.
Additionally, Willis's conduct in representing petitioner, as described in his testimony, is consistent with that of an experienced criminal defense lawyer. Willis's testimony demonstrates a conscientious and proper effort on his part to make sure that petitioner understood the advantages and disadvantages of appealing and not appealing. Indeed, petitioner received a sentence below his guideline range.
The credible nature of Willis's testimony discredits the contrary testimony by petitioner. Petitioner's strong incentive to obtain reduction of his sentence also undermines his credibility.
Further, after the day of sentencing, there was no communication by petitioner or anyone else on his behalf regarding the status of the purported appeal. A person in custody who believed an appeal had been filed could reasonably be expected to contact his attorney personally or through others about the status of the appeal. The absence of follow-up inquiries by or on behalf of petitioner discredits his allegation that he directed Willis to file an appeal.
In particular, in her 25 June 2015 text exchange with Willis, petitioner's mother inquired about the availability of an appeal process, not the status of an existing appeal. See Text Messages 1. Moreover, Willis responded to this inquiry by stating that there was an appeal process and that if petitioner wanted to speak about appeals again a telephone call between the two needed to be arranged. Id. at 2. Petitioner's mother indicated she would relay Willis's response to petitioner and contact Willis if petitioner wanted to speak with him. Id. at 2. The record does not show that there was any follow-up contact with Willis.
Petitioner admitted at the hearing that after sentencing he did not write any letters to Willis regarding an appeal, although he did write Willis about the issue of forfeiture of guns the government had seized. See § 2255 Tr. 13:11 to 14:4; see PSR ¶ 8 (discussing recovery of 19 firearms from search of petitioner's residence). Petitioner explained his failure to write Willis about an appeal as follows: "By the time I found out there was a 14-day grace period, the appeal process with Mr. Willis was past due; that's why I did not write Mr. Willis about the appeal." Tr. 13:25 to 14:2. This explanation is not credible.
At his arraignment hearing, the court explained to petitioner his right to appeal, including the 14-day deadline for an appeal. Tr. of Arraign. Hr'g ("Arraign. Tr.") 9:4-20. Petitioner told the court under oath that he understood this information. Id. at 12:7-10; 14:2-5. These statements by petitioner "carry a strong presumption of veracity." Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2015). Petitioner has not overcome this presumption, and the statements are binding on him. Moreover, at the sentencing hearing, the court again explained to petitioner his appeal rights, again including the 14-day deadline for bringing the appeal. Sent. Tr. 31:18 to 32:10. Thus, petitioner knew at the time of sentencing about the 14-day period for appealing. He therefore cannot credibly blame learning of the appeal deadline only after it had passed as a basis for not contacting Willis about the alleged appeal.
For the same reasons, the representation in petitioner's mother's 25 June 2015 text message that petitioner was seeking information about the appeal process is dubious. Text Messages 1 ("Our family and of course Wesley, are wondering if there is any appeal process for the added years that were given because of the enhancements that were added to the plea." (emphasis added)).
It was not until the § 2255 hearing that petitioner alleged specifically that it was immediately after his sentencing hearing that he had instructed Willis to file an appeal. Id. at 10:15-18. His petition, memorandum, and declaration contained no facts in support of this specific allegation, but instead only the bald assertion that his attorney failed to file an appeal as instructed. Pet. 4, 9; Pet'r's Mem. 5-6, 10; Pet'r's Decl. ¶ 5.
Petitioner's testimony that he believed the appeal waiver provision in the plea agreement to concern appealing the plea agreement is undercut by the representations he made to the court that he understood the waiver. Specifically, at the arraignment hearing, the court read the appeal waiver provision to petitioner. Arraign. Tr. 16:20 to 17:10; Plea Agree. ¶ 2.c. Petitioner told the court under oath that he understood the appellate and other rights he was giving up in the appeal waiver provision. Arraign. Tr. 17:10-13. He also stated under oath, more generally, that he understood each term in the plea agreement, which would necessarily include the appeal waiver provision. Id. at 16:17-19. In addition, petitioner told the court under oath that he read and discussed the entire plea agreement with Willis before he signed it. Id. at 16:10-12. Petitioner's statements to the court under oath are binding on him. Blackledge, 431 U.S. at 74; Lemaster, 403 F.3d at 221. At the sentencing hearing, the court again explained to petitioner the appeal waiver. Sent. Tr. 31:18 to 32:4. Petitioner's lack of truthfulness regarding his understanding of the appeal waiver detracts from his credibility generally.
The testimony of petitioner's mother and sisters does not substantiate that petitioner instructed Willis to file an appeal. Instead, it dealt largely with their own understanding of the appeal process. Their testimony, along with the mother's text messages, made clear their devotion to petitioner and desire to help him, and their attention to this case. If petitioner had instructed Willis to file an appeal, it seems likely that his mother and sisters would have known that he did so and would have testified to this knowledge at the hearing in an effort to help him. But there was no such testimony. The absence of it tends to substantiate that he did not instruct Willis to file an appeal.
The court is aware that in their declarations petitioner's mother, Susan Fuller, and his sister Nancy Collins represent that Willis was asked to file an appeal. Fuller states that "the Attorney was requested to file the appeal." Fuller's Decl. ¶ 6. Collins states that she insisted to Willis that "we, as a family, continue to request and question the attorney about the appeal." Collins's Decl. ¶ 4. These declarations, though, were not offered or admitted as evidence at the § 2255 hearing and therefore are not part of the record of the hearing. See Cross v. United States, Nos. 5:16-cv-06097, 5:15-cr-00079, 2016 WL 4766490, at *1, n.2 (S.D. Va. 12 Sept. 2016) ("The Federal Rules of Evidence are applicable in a § 2255 proceeding" (citing Fed. R. Evid. 1101(a), (b))). Therefore, the court has not considered them in evaluating petitioner's failure-to-appeal claim.
Even if these statements were considered, though, they would not change the court's analysis. Neither states expressly that it was petitioner, as opposed to family members, who requested that an appeal be filed. Indeed, neither statement identifies at all the specific individual or individuals who requested an appeal. Nor do the statements indicate the number of requests that were made and when the request or requests were made. The credibility of the statements is also diminished by the bias Fuller and Collins manifestly have in favor of petitioner and, as discussed above, the absence of evidence of communications with Willis about the pendency of an appeal, including the absence of any reference to a pending appeal in Fuller's text messages to Willis. Lastly, both declarations reference the meeting Fuller and her husband had with Willis. Fuller's Decl. ¶ 4; Collins's Decl. ¶ 5. Fuller's testimony that this meeting occurred before sentencing and that she and her husband "had nothing specific to ask about at that time" refutes any suggestion in the declarations that at this meeting Fuller and her husband requested Willis to appeal. § 2255 Tr. 30:7-14.
Because petitioner has failed to show by a preponderance of the evidence that he unequivocally directed Willis to file an appeal, his claim of ineffective assistance of counsel based on Willis's not filing an appeal fails. This claim should accordingly be dismissed.
CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the sole remaining claim in petitioner's § 2255 petition, for ineffective assistance of counsel for failure to file an appeal as instructed, be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 9 February 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Any response to objections shall be filed within 14 days after the filing of the objections.
SO ORDERED, this 26th day of January 2018.
/s/_________
James E. Gates
United States Magistrate Judge