Opinion
7:23-CV-00168-FL 7:19-CR-00157-FL
05-09-2024
Torrence Lesean McMillian, v. United States of America.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Petitioner Torrence Lesean McMillian, proceeding under 28 U.S.C. § 2255, seeks to vacate the 120-month sentence he received after pleading guilty to drug and gun offenses. Mot. to Vacate, D.E. 102, 105. The United States moved to dismiss McMillian's motion. Mot. to Dismiss, D.E. 113.
Unless otherwise noted, docket citations refer to documents in McMillian's criminal case, No. 7:19-CR-00157-FL.
McMillian contends that his attorney, Geoffrey Hosford, was ineffective in several ways, including failing to follow McMillian's instruction to file a notice of appeal. The United States has moved to dismiss several of McMillian's claims. The court also held an evidentiary hearing on the appeal-related claim.
After conducting that hearing, reviewing the docket, and considering the parties' arguments, this opinion concludes that McMillian is not entitled to the relief he seeks because the record does not support his claims. Thus, the District Court should deny McMillian's motions to vacate (D.E. 102, 105) and grant the United States' motion to dismiss (D.E. 113).
I. Background
In October 2019, a federal grand jury indicted McMillian on five drug- and gun-related charges. Indictment, D.E. 1. Hosford appeared as McMillian's attorney a few days after his arrest. D.E. 23.
Eleven months later, pursuant to a written plea agreement, McMillian pleaded guilty to three charges: conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine, possession with the intent to distribute 28 grams or more of crack, and possessing a firearm in furtherance of a drug trafficking crime. Plea Agreement, D.E. 56.
Both drug charges carried a five-year mandatory minimum sentence. 21 U.SC. § 841(b)(1)(B). The gun charge also came with a five-year mandatory minimum sentence, and that sentence had to run concurrently to any other sentence the court imposed. 18 U.S.C. § 924(c). These mandatory minimums were listed in McMillian's plea agreement, and he was advised of them before entering his guilty plea. Plea Agreement at 4-6; Arr. Tr. at 15:4-17:3, D.E. 111.
The Probation Office prepared a Presentence Investigation Report (PSR). D.E. 83. It set forth McMillian's offense conduct. Id. ¶¶ 11-16. Law enforcement learned that a confidential informant delivered six kilograms of cocaine to McMillian. Id. ¶ 11. While under law enforcement surveillance, McMillian later placed nearly 2,500 grams of cocaine in an undercover vehicle. Id. ¶ 12. After his arrest, a search of McMillian's residence recovered over 24 grams of a mixture of cocaine and crack cocaine as well as almost 200 grams of crack cocaine and 46 grams of marijuana. Id. ¶ 13.
The PSR also outlined the penalties McMillian faced. Id. ¶ 70. It specifically observed that Counts One, Three, and Four each carried minimum terms of imprisonment. Id. And a sentence on Count Four must run consecutively to any other sentence. Id. ¶ 71. McMillian filed no objections to the PSR. Id. at 18.
In December 2021, the court sentenced him to ten years in prison-five years on each drug offense, to run concurrently, and five years on the firearm charge, to run consecutively to the drug charges. D.E. 91. Neither McMillian nor Hosford filed a notice of appeal before the time to do so expired.
The 120-month sentence was the statutory minimum. Presentence Investigation Report (PSR) ¶¶ 70-71, D.E. 83.
Three months after sentencing, McMillian asked the court for information about his appeal. D.E. 93. The court notified McMillian that it intended to recharacterize the filing as a motion to vacate, correct, or set aside sentence under 28 U.S.C. § 2255. Order, D.E. 94. McMillian responded that he did not wish for the court to do that. D.E. 95. He then asked the court to provide him with certain filings from his case. Mot., D.E. 96. The court denied his requests. Order, D.E. 98.
McMillian filed a pro se motion to vacate his sentence in December 2022, and a corrected motion four months later. Am. Mot. to Vacate, D.E. 102; Mot. to Vacate, D.E. 105. The motion contends that Hosford provided ineffective assistance in five ways. First, that Hosford refused to turn over McMillian's file to him. Second that he threatened McMillian that if he went to trial he would receive an above-guideline sentence. Third, that he failed to inform McMillian of the consequences of pleading guilty. Fourth, that Hosford failed to object to errors in drug weight calculations. And fifth he also says that Hosford failed to file a notice of appeal after McMillian directed him to do so. Mot. to Vacate at 5, D.E. 105; Mem. in Supp. of Mot. to Vacate at 1, 3-4, D.E. 105-1.
In response, the United States asked the court to dismiss McMillian's motion. Mot. to Dismiss, D.E. 113.
The court held a hearing on McMillian's claim related to the alleged failure to file a notice of appeal in March 2024. D.E. 132. At that hearing, McMillian; Hosford; and Ira Bruce McMillian, McMillian's uncle, testified.
A. Torrence McMillian
McMillian testified first. During his testimony, McMillian said that he met with Hosford the day before the sentencing hearing. March 14, 2024, Evid. Hr'g Tr. at 6:16-18. During that meeting, they reviewed his anticipated sentence. Id. McMillan claims Hosford said that the court sentenced defendants to three to five years in prison for similar charges. Id. at 6:23-24.
McMillian maintains that he told Hosford he wanted to appeal twice. Id. at 12:16-22. The first time occurred outside the courtroom after sentencing. Id. at 7:15-16. Although Hosford said it would make no difference, McMillian said he did not care. Id. at 7:16-17.
The second time occurred after they exited the courthouse. Id. at 8:22-24. McMillian told his attorney to file an appeal for him and he did not care if it would make a difference. Id. at 8:911. Hosford replied “[a]ll right.” Id. at 8:12.
McMillian testified that he tried to contact Hosford about his appeal after his sentencing. Id. at 12:23-13:1. McMillian also asked his uncle, Bruce McMillian, to ask Hosford about the appeal. Id. at 9:15-18.
Three months after sentencing, McMillian wrote the court asking about his appeal. Id. at 10:20-21. The court informed McMillian that no appeal had been filed. Id. at 10:23-24.
On cross-examination, the government asked McMillian about his criminal proceedings. McMillian acknowledged that the court explained the charges he faced at his arraignment. Id. at 14:19-21. It informed him of the maximum penalties for each count. Id. at 14:22-24. But McMillian did not hear the court explain to him that the judge alone would determine his sentence. Id. at 15:3-9.
McMillian affirmed that the drug offenses in Count One and Three each carried mandatory minimum terms of five years. Id. at 15:24-16:11. He conceded that the firearm offense in Count Four also carried a mandatory minimum sentence of five years that must run consecutively. Id. at 16:18-20.
McMillian denied being advised that his attorney could only offer an estimate, not a promise, of the sentence he would receive. Id. at 16:22-17:9. But he admitted that no one had promised him anything in exchange for entering a guilty plea. Id. at 17:15-20.
McMillian did not recall the judge informing him of his guideline range at his sentencing. Id. at 20:9-12. And he denied receiving a downward variance in sentencing. Id. at 22:8-9.
McMillian reiterated that after sentencing, he told his attorney to “go ahead and file the appeal[]” to which Hosford replied “[o]kay.” Id. at 24:13-16. McMillian had no doubt in his mind that he twice told Hosford to file an appeal. Id. at 26:10-12.
B. Bruce McMillian
Bruce McMillian, McMillian's uncle, testified next. Bruce did not attend his nephew's December 2021 sentencing. Id. at 30:1-3. But when he spoke with his nephew after sentencing, McMillian expressed that he had expected a sentence of three to four years. Id. at 30:8-11. And McMillian told his uncle that he instructed his attorney to file an appeal. Id. at 30:15-17.
At his nephew's request, Bruce left a message for Hosford to let him know his nephew wanted to get in touch with him. Id. at 32:4-6. If he had reached Hosford, Bruce would have told him to file an appeal because his nephew was saying that he had “to get this thing appealed.” Id. at 33:1-5.
C. Geoffrey Hosford
Hosford was the final witness. Hosford has practiced law in North Carolina for 30 years. Id. at 35:16-18. His background includes work for a former United States Attorney and the Cumberland County Public Defender's Office before starting his own practice over two decades ago. Id. at 35:23-36:2.
Hosford is a board-certified specialist in state and federal criminal law. Id. at 36:3-4. He has tried many criminal cases and has experience handling both state and federal appeals. Id. at 36:13-18.
Hosford testified that it was McMillian's decision to plead guilty. Id. at 37:19-20. Hosford advised McMillian that it was the best course in his case. Id. at 37:20-21.
Hosford reviewed the Plea Agreement with McMillian. Id. at 38:2-5. And he went over the PSR with McMillian. Id. at 37:23-38:1.
According to Hosford, McMillian was aware of the mandatory minimum sentences in his case having been advised of them at his initial appearance and arraignment, as well as through his Plea Agreement. Id. at 39:8-12.
McMillian also was knowledgeable of the guideline ranges. Id. at 39:13-14. He knew that the sentence for Count Four would run consecutively to any other sentence. Id. at 39:15-18. The Plea Agreement, which McMillian signed, explained the charges and penalties, including the mandatory minimum sentences. Id. at 39:24-40:2. So McMillian received information about his potential sentence both orally and in the written Plea Agreement. Id. at 40:3-5.
As to an appeal, Hosford discussed the appellate waiver with McMillian when he signed the Plea Agreement. Id. at 47:3-4. Hosford reviewed the PSR with McMillian before objections were due in December 2021. Id. at 46:16-18; see Suppl. to Draft PSR, D.E. 66-1. After the government agreed to the mandatory minimum sentence and before sentencing, Hosford would have discussed with McMillian that there were no issues for appeal. Evid. Hr'g Tr. at 47:18-20.
After the sentencing hearing, Hosford left the courthouse with McMillian and his father. Id. at 41:20-22. Hosford denied that McMillian asked him to file a notice of appeal at that time. Id. at 41:24-42:1. Had McMillian asked him to do so, Hosford would have done it. Id. at 42:1012. Regardless of a lawyer's assessment of merit, Hosford noted, an attorney must file a notice of appeal if a client requests it. Id. at 43:25-44:5.
Hosford reiterated that he and McMillian had discussed the appeal process before sentencing. Id. at 42:45. Because the Government had agreed to the statutory minimum sentence, there would be no issues for appeal. Id. at 42:6-9.
After sentencing, McMillian contacted Hosford's office about his reporting date. Id. at 42:24-25. But McMillian did not ask Hosford about filing a notice of appeal at any time. Id. at 43:18-20. Hosford repeated that he would have filed a notice of appeal if requested. Id. at 43:2123.
On cross-examination, Hosford again stated that he must file a notice of appeal if a client tells him to do so, despite of the merits. Id. at 49:6-9. He talked with McMillian about an appeal before sentencing. Id. at 49:18-19. Hosford denied a discussion of the advantages and disadvantages of a notice of appeal outside the courthouse following sentencing. Id. at 49:21-25. Instead, they had that conversation before sentencing. Id. at 49:25.
Hosford and McMillian talked about an appeal when he signed the Plea Agreement. Id. at 50:15-16. Hosford recalled discussing McMillian's sentence with him. Id. at 50:22-23. They talked about an appeal. Id. at 50:23. Hosford stated there was really nothing to appeal, and McMillian responded “okay.” Id. at 50:23-24.
So it was clear to Hosford that McMillian was not interested in an appeal. Id. at 50:4-5. Before sentencing, Hosford understood that McMillian wished not to appeal. Id. at 50:8-10. McMillian did not inform Hosford that he changed his mind. Id. at 50:10-11. And McMillian never directed him to file an appeal. Id. at 50:11. If he had, Hosford would have filed a notice of appeal for McMillian. Id. at 50:11-12.
II. Discussion
McMillian has failed to show Hosford was ineffective in representing him to warrant relief on his petition. McMillian's sworn statements refute his claim that his plea was unknowing and involuntary. And his sworn statements contradict his allegation that Hosford's threatened him with a higher sentence if he did not plead guilty. Although McMillian maintains that the drug weight for which he was responsible was incorrect, his Plea Agreement and other case filings disprove that argument.
McMillian also has not established that he instructed Hosford to appeal his sentence but counsel failed to do so. And Hosford has turned McMillian's case file over to him, resolving this issue.
Failing to establish he is entitled to relief on any claim, the court should deny McMillian's petition.
A. Standard of Review for § 2255 Petitions
McMillian can prevail on his motion to vacate in four ways. He could show that the district court imposed a sentence that violated the Constitution or laws of the United States. 28 U.S.C. § 2255(a). Or he could establish that the court lacked jurisdiction to sentence him. Id. He could also show that his sentence exceeded what the law allowed. Id. And if he cannot make any of those showings, he could still prevail by showing that his sentence was otherwise subject to collateral attack. Id. No matter which avenue he pursues, he must show that he is entitled to relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
The United States has moved to dismiss some of McMillian's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Federal Rules apply to a § 2255 motion only if they do not conflict with any other statutory provisions or the procedural rules specifically applicable to § 2255 motions. Rules Governing Section 2255 Proceedings, Rule 12. The court will apply the standard for Rule 12(b)(6) motions in considering the motion to dismiss because there is no conflict between the rule and the provision mentioned in the prior sentence.
The Supreme Court has explained that to withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, while a court must accept all the factual allegations in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. The court may also consider documents in the public record, Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and in the context of a § 2255 motion, “the files and records of the case[,]” 28 U.S.C. § 2255(b).
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or just a formulaic recitation of the elements of a claim. Iqbal, 556 U.S. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly suggest[s] an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown' - ‘that the pleader is entitled to relief'” Id. (quoting Fed.R.Civ.P. 8(a)(2)). If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
B. Ineffective Assistance of Counsel Claims
In order to establish ineffective assistance of counsel, a petitioner must satisfy a twopronged test. See Strickland v. Washington, 466 U.S. 688, 687 (1984). Under the first prong, a petitioner must show that his counsel's representation “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” to 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.
The second prong requires a petitioner to demonstrate that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the context of a guilty plea, the prejudice prong requires a showing that “there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
When a petitioner challenges his guilty plea based on alleged ineffective assistance of counsel before entry of the plea, the claim is evaluated against the petitioner's sworn statements at his arraignment. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (explaining statements made under oath at the plea hearing carry a “strong presumption of verity” and present a “formidable barrier” to subsequent collateral attacks). “[I]n the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should dismiss . . . any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.” United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005); see also Lee v. United States, 582 U.S. 357, 369 (2017) (“Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.”); United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003) (“[W]hen a defendant says he lied at the Rule 11 colloquy, he bears a heavy burden in seeking to nullify the process.”). Courts have found extraordinary circumstances in limited instances. See Fontaine v. United States, 411 U.S. 213, 214-15 (1973) (extraordinary circumstances present where movant was physically and mentally ill and his plea was uncounseled at the arraignment hearing); United States v. White, 366 F.3d 291, 297-300 (4th Cir. 2004) (extraordinary circumstance found where the government conceded that ineffective assistance of counsel rendered guilty pleas involuntary warranting an evidentiary hearing to determine whether prosecutors orally promised that the defendant could enter a conditional plea).
1. Knowing and Voluntary Plea
McMillian contends that counsel failed to advise him of the consequences of entering a guilty plea. Am. Mot. to Vacate ¶ 12(a)(3). McMillian does not develop this argument in his supporting memorandum. Thus he has waived it. See Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 386 n.* (4th Cir. 2014).
But even if he properly developed it, McMillian would be unable to state a claim for relief on that ground. Contrary to McMillian's claims, his sworn statements at his arraignment shows that he knowingly and voluntarily entered a guilty plea.
In response to questioning from a Magistrate Judge, McMillian made several statements, under oath, related to whether he was pleading guilty knowingly and voluntarily.
• McMillian told the court that he understood the charges against him and had fully discussed the charges and his case with his attorney. Arr. Tr. at 13:9-15; 14:6-9; 14:22-24.
• McMillian said that he understood how he would be sentenced. Id. at 14:16-18.
• McMillian said he understood the charges and the maximum penalties they carried. Id. at 13:5-15; 14:19-24; 17:3-7
• McMillian affirmed that his plea was freely and voluntarily entered. Id. at 11:2112:2; 20:1-8.
• McMillian read the plea agreement, discussed it with his attorney, and understood the agreement's terms. Id. at 18:24-19:14.
• McMillian specifically denied that, beyond what was in his plea agreement, anyone had made him any promises to get him to plead guilty. Id. at 19:21-25.
• McMillian confirmed that no one had threatened him in any way to get him to plead guilty. Id. at 20:1-4.
• McMillian asserted that he was pleading guilty of his own free will because he was, in fact, guilty. Id. at 20:5-8.
• McMillian confirmed that he intended to plead guilty to the relevant counts in the indictment. Id. at 17:15-19.
Unless McMillian can show that exceptional circumstances exist, the truth of these statements are “conclusively established” for purposes of post-conviction challenge. Lemaster, 403 F.3d at 221-22; Blackledge, 431 U.S. at 74 (“Solemn declarations in open court carry a strong presumption of verity.”). McMillian has neither alleged nor shown that exceptional circumstances exist that would justify disregarding his sworn statements. So his “subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal[.]” Id. Thus the District Court should dismiss this claim.
2. Sentencing Implications of Going to Trial
McMillian next claims that Hosford “promised” him that if he “promptly accepted” his plea agreement, he would receive “a sentence on the lower end of the sentencing guidelines.” Mem. in Supp. of Mot. to Vacate at 3. And he maintains that his attorney “threatened” that if he went to trial “he would lose and receive a sentence above the guideline range.” Id.
Much like McMillian's first argument, this argument is also foreclosed by his statements at his arraignment. As noted above, McMillian stated, under oath, that his guilty plea did not result from any promises or assurances beyond what was in his plea agreement. Arr. Tr. at 19:21-25. And he also told the court that no one had threatened him to get him to plead guilty. Id. at 20:1-4. And he confirmed he understood the terms of his plea agreement, which explained that he faced at least ten years in prison if he accepted its terms. Id. at 19:10-14. McMillian has provided no reason for the court to reject the presumption of truthfulness that attaches to these statements, so his claim should be dismissed.
Even if Hosford told McMillian that he would receive a more favorable sentence if he pleaded guilty rather than go to trial, that would not provide a basis for relief. Patrick v. Warden, Perry Corr. Inst., No. 5:14-CV-4367, 2016 WL 11410317, at *26 (D.S.C. Jan. 27, 2016) (“[A] habeas petitioner cannot avoid the consequences of a guilty plea by claiming coercion due to fear of a harsher sentence that could be entered following a conviction.”); Addis v. Warden of Allendale Corr. Inst., No. CV 1:15-1109, 2016 WL 354192, at *10 (D.S.C. Jan. 11, 2016) (counsel's advice of potential sentence defendant faced at trial “is not tantamount to coercion, duress or an improper ‘threat' rendering the plea involuntary.”). Thus the District Court should dismiss this claim.
3. Drug Weight
McMillian next contends that his guilty plea and his sentence are based on an inaccurate calculation of the drug weight attributed to him. He says that although his plea and sentence were based on his participation in a conspiracy involving 500 grams or more of cocaine, he should only have been held accountable for 200 grams or less. According to McMillian, Hosford repeatedly told his client that he would object to this at the plea hearing and at sentencing but failed to do so.
The claim that there was an insufficient factual basis for the court to accept McMillian's guilty plea is, like his other claims, refuted by his statements at his arraignment. After the United States outlined the factual basis for McMillian's guilty plea, which establishes the necessary elements of each charge, he told the court that he heard and understood the factual basis and disputed nothing in the government's recitation. Arr. Tr. at 26:10-16. McMillian also admitted that, in addition to pleading guilty, he committed the offenses charged in the indictment. Id. at 21:19-22:22. Thus his claim for ineffective assistance related to the factual basis for entry of a guilty plea should be dismissed. See Ulmer v. United States, Nos. 5:20-CR-131-FL & 5:22-CV-328-FL 2023, WL 4865553, at *3 (E.D. N.C. July 21, 2023).
There is also no basis to find that Hosford provided ineffective assistance at sentencing. As part of the plea agreement, McMillian stipulated that he was responsible for between 1,000 kilograms and 3,000 kilograms of cocaine. Challenging the drug weight in the manner McMillian proposes would have jeopardized his plea agreement and would likely have led to the court rejecting it. That development would have exposed McMillian to a potentially harsher sentence. Given his stipulation, Hosford's failure to challenge the drug weight did not constitute ineffective assistance. See United States v. Bondhill, No. 7:20-CR-00076, 2024 WL 1608017, at *6 (W.D. Va. Apr. 12, 2024); see Cervantes-Sanchez v. United States, No. 5:18-CR-48, 2020 WL 2556955, at *6 (W.D. N.C. May 20, 2020) (“Counsel cannot be deemed ineffective for failing to object to facts contained in the PSR to which Petitioner stipulated as part of his free and voluntary guilty plea.”).
And in any event, there is substantial evidence supporting McMillian's involvement with 500 grams or more of cocaine. While the PSR states that law enforcement seized just under 200 grams of cocaine base (crack) from McMillian's property, PSR ¶ 13, those are not the only drugs attributable to McMillian. For example, the United States' factual proffer describes McMillian's involvement with a controlled purchase of two kilograms (or 2,000 grams) of cocaine in February 2017, Arr. Tr. at 23:7-17. Similar information is contained in the PSR. PSR ¶¶ 11, 12. In fact it appears that, in total, McMillian is responsible for six kilograms of cocaine. Id. ¶ 11, 16. McMillian has provided no reason to believe that these statements are false.
McMillian has failed to allege or show that his attorney provided ineffective assistance by failing to object to the drug weight or that he suffered prejudice as a result. Thus, the District Court should deny this portion of his motion.
4. Notice of Appeal
McMillian alleges that he received ineffective assistance because his attorney failed to file a notice of appeal after McMillian instructed him to do so. After reviewing the evidence, the undersigned concludes that McMillian's testimony is not credible and thus finds that his argument lacks merit.
The Supreme Court has “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, 477 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969)). If an attorney “fails to follow his client's unequivocal instruction” to appeal, the court presumes the defendant has been prejudiced even if the appeal would not have succeeded. United States v. Poindexter, 492 F.3d 263, 265, 268 (4th Cir. 2007). This is because the failure to file the notice leads to a forfeiture of the appellate proceeding. Id.
The court's analysis begins (and ends) with a consideration of whether McMillian explicitly instructed Hosford to pursue an appeal. McMillian contends in his motion that Hosford ignored his request to do so. And at the evidentiary hearing, McMillian claimed he that he told Hosford twice after sentencing that he wanted to appeal. Hosford claims that McMillian never made such a request.
Given these conflicting stories, the court must determine which version of events is more credible. In assessing the credibility of witnesses, trial courts consider “variations in demeanor and tone of voice.” Anderson v. City of Bessemer, 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. Additional considerations can include the witness's motives 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). In light of the many inconsistencies in McMillian's sworn statements, the court finds Hosford to be more credible.
McMillian gave several statements that conflicted with other evidence. First, McMillian acknowledged that the court had advised him of the minimum and maximum penalties he faced at his arraignment. Through his Plea Agreement, he understood he would receive at least 10 years in prison. Yet he claims he was “surprised” when he received that exact sentence.
Second, McMillian testified that Hosford did not review the PSR with him. Id. at 6:19-20. In fact, McMillian denied seeing the PSR until his court-appointed attorney provided it to him. Id. at 6:20.
But his filings make it clear that McMillian was familiar with the contents of the PSR when he drafted his motion to vacate-which preceded the appointment of his attorney. McMillian claims that PSR miscalculated the drug weight attributable to him. Am. Mot to Vacate ¶ 19; Mem. in Supp. of Mot. to Vacate ¶ 19. He maintains that the PSR miscalculated his offense level. Id. ¶ 22. And McMillian faults Hosford for failing to object to the drug weights in the PSR. Id. ¶ 26.
McMillian filed his Amended Motion to Vacate and Motion to Vacate in December 2022 and April 2023, respectively. D.E. 102, 105. His court-appointed counsel for the evidentiary hearing entered her appearance in December 2023. Notice, D.E. 121.
It is unclear how McMillian can reference the substance of the PSR in his pleadings, yet claim that he did not see the PSR until several months later. So his testimony conflicts with other evidence.
Third, McMillian testified that Hosford suggested he would receive three to five years in prison. But the court advised him at both his initial appearance and arraignment that Counts One, Three, and Four each carried five-year mandatory minimum sentences. Arraignment Tr. at 15:417:7. McMillian understood that the gun conviction was a consecutive sentence. Id. at 13:5-15; 14:19-24; 15:19-16:3; 17:3-7. The Plea Agreement, which McMillian affirmed he read and understood, also set out his sentencing exposure, correctly calculating his minimum sentence to be 10 years. Id. at 19:10-14; Plea Agreement at 6.
And at his arraignment, McMillian affirmed that he understood that each charge carried a five-year mandatory minimum sentence. Arraignment Tr. at 15:10-17:7. He also understood that the firearm sentence must run consecutively to any other sentence. Id.
There are the many instances apprising McMillian of his sentencing ranges, including the statutory minimum sentences and a requirement that one sentence run consecutively. McMillian acknowledges knowing these facts. So for McMillian to claim he expected a lower sentence, when he received the lowest possible sentence, is not convincing.
Fourth, McMillian denied being advised that his attorney could only estimate, not promise, the sentence he would receive. Evid. Hr'g Tr. at 16:22-17:9. But he conceded that no one promised him anything in exchange for entering a guilty plea. Id. at 17:15-20. And McMillian acknowledged that he reviewed the Plea Agreement, which set forth that “the sentence had not yet been determined by the Court” and “any estimate of the sentence received from any source is not a promise[.]” Plea. Agt. ¶ 3(c).
Fifth, McMillian did not recall the court informing him of his guideline range at his sentencing hearing. And he denied receiving a downward variance. But the court did. Sent'g Hr'g Tr. at 3:10-13; 14:5-7; 15:16-22, D.E. 117. These discrepancies reveal that McMillian's recollection of the events of that day are not reliable.
Sixth, McMillian testified that he met with Hosford the day before the sentencing hearing. Evid. Hr'g Tr. at 6:15-18. But in his pleadings, McMillian claims he did not meet with Hosford until the day of sentencing. Am. Mot. to Vacate ¶ 24; Mem. in Supp. of Mot. to Vacate ¶ 24.
And seventh, McMillian acknowledged that he connected with Hosford after sentencing about his reporting date. Evid. Hr'g Tr. at 8:15-22. Hosford asked if McMillian needed more time to report to prison, but McMillian responded “no.” Yet McMillian did not ask Hosford about an appeal, despite his claim that he tried to reach Hosford about that matter and asked his uncle to contact Hosford as well.
McMillian's testimony is riddled with inconsistencies. Hosford's testimony is not. Thus, the court finds that Hosford's statement that McMillian did not tell him to appeal after his sentencing is more credible than McMillian's testimony to the contrary.
Based on the credible testimony, the undersigned concludes that McMillian has failed to prove by a preponderance of the evidence that he instructed Hosford to file a notice of appeal for him and that Hosford failed to do so. Thus, the undersigned recommends that the court deny this portion of McMillian's § 2255 motion.
5. Client Files
McMillian also argues that his attorney failed to provide him a copy of his case file. But he has not established why that shortcoming, if it occurred, would entitle him to relief from his conviction or sentence. So the District Court should dismiss this claim.
But, in any event, at the evidentiary hearing, Hosford testified that he provided McMillian's file to his court-appointed attorney at her request. Evid. Hr'g Tr. at 44:12-19; 45:6-10. He sent everything on his cloud-based system to her. Id. at 44:22-45:5; 46:6-7. Having produced the case file, this issue appears moot. The court should thus deny McMillian's motion on this subject.
McMillian's court-appointed attorney who represented him at the evidentiary hearing. See Order, D.E. 118.
III. Conclusion
For the reasons discussed above, the District Court should deny McMillian's motions to vacate his conviction and sentence (D.E. 102, 105) and grant the government's motion to dismiss (D.E. 113).
The Clerk of Court must serve a copy of this M&R on each party who has appeared here. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.