Opinion
No. CV 12-536 RB/GBW No. CR 11-345 RB
08-31-2012
JON DEE MICAH PENNINGTON, Applicant, v. UNITED STATES OF AMERICA, Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the Court on Applicant's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." Doc. 2. Applicant argues that he is entitled to relief on two grounds: he claims that he suffered from ineffective assistance of counsel because (1) Trial Counsel failed to file a timely notice of appeal after he asked her to do so, and (2) Trial Counsel failed to object to the Presentence Investigation Report ("PIR"), which, he alleges, improperly assessed him three criminal history points. As to the claim that Trial Counsel failed to file an appeal despite Applicant's request that she do so, the undersigned concludes that the claim requires a limited evidentiary hearing, and will order such a hearing if the Court adopts this Proposed Findings and Recommended Disposition. As to the claim that Trial Counsel failed to object to the PIR's improper computation of Applicant's criminal history points, the undersigned proposes that the Court find that the PIR correctly calculated Applicant's criminal history points, and therefore recommends that the Court deny relief on this claim.
The PIR, with private identifiers redacted, is attached as Exhibit 1.
Background
A grand jury indicted Applicant on one count of possession "with intent to distribute 100 kilograms and more of a mixture and substance containing a detectable amount of marijuana, contrary to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)[,]" and of violating 21 U.S.C. § 846. 2:11-cr-00345-RB, ("Underlying Case"), doc. 1. On May 23, 2011, Applicant signed a plea agreement in which he plead guilty to the indictment. Underlying Case, doc. 28. On October 5, 2011, this Court sentenced Applicant to 60 months' imprisonment, to be followed by four years' supervised release. Underlying Case, doc. 35 at 2-3. On May 17, 2012, Applicant filed his Motion for post-conviction relief and a memorandum of law in support of that motion. 2:12-cv-00536 ("Instant Case"), docs. 2-3.
Failure to Appeal
In the underlying case, Applicant failed to file a notice of appeal. See Underlying Case docket. Applicant states that "he did directly instruct his trial counsel Ms. Jane Greek, to file a timely notice of appeal on his behalf. But counsel through neglect failed to timely file said notice of appeal." Instant Case, doc. 2 at 4. Applicant has filed an affidavit stating, under the penalty of perjury, that he "specifically instructed [his] attorney . . . to file an appeal on [his] behalf[, and that she] assured [him] that she would filed a notice of appeal as soon as she returned to her office that day." Instant Case, doc. 3 at 10.
In contrast, Respondent has filed an affidavit subscribed and sworn by Applicant's Trial Counsel in which Trial Counsel states, "I do not recall having any discussion with [Applicant] about appeal, nor does my file reflect any desire to appeal either before or immediately following sentencing." Instant Case, doc. 8, Ex. 1 ¶ 4.
Criminal History Points
The PIR contained a section addressing Applicant's criminal history and concluded that in his case, "The total of the criminal history points is 3, which establishes a criminal history category of II. U.S.S.G. Chapter 5, Part A." According to the PIR, law enforcement authorities had arrested Applicant three times prior to the arrest leading to the underlying case, on February 29, 2003, on March 3, 2005, and on May 23, 2007. PIR at 8-9. The first arrest had led to a case which terminated in an "Order of Expungement"; the PIR therefore gave Applicant no criminal history points for that incident. Id. Applicant's second arrest did not lead to a conviction, and he therefore received no criminal history points for that arrest either. Id. at 9-10. As for his third arrest, however, the PIR indicates that he pled no contest and received a deferred sentence, and that the deferment would last until January 11, 2013. Id. at 9. Importantly, the PIR identified the case in question as "CF-2007-274." Id. The PIR assessed Applicant one (1) criminal history point for this conviction under the United States Sentencing Guidelines ("U.S.S.G.") § 4A1.1(c). Id. The PIR then assessed Applicant two (2) additional points under U.S.S.G. § 4A1.1(d) because he "was serving a term of community supervision for the conviction" stemming from that case, and therefore "committed the instant offense while under a criminal justice sentence." Id. The PIR therefore assessed Applicant a total of three criminal history points. Id.
"Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection." U.S.S.G. § 4A1.1(c).
"Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." U.S.S.G. § 4A1.1(c).
Applicant asserts that his Trial Counsel should have objected to the PIR because Applicant's conviction in CF-2007-274 had been expunged and the PIR should therefore not have assessed him any criminal history points based on that conviction. Instant Case, doc. 2 at 5.
Applicant has filed copies of a Motion to Expunge and an Order of Expungement. Instant Case, Doc. 2 at 12-13. The Motion to Expunge and the Order of Expungement have captions naming the defendant as John Doe, and indicating that they pertain to "Case No. CF-2007-247." Id.
Legal Standards
Pursuant to 28 U.S.C. § 2255, an individual who is sentenced to prison by a federal court, and who "claim[s] the right to be released upon the ground that the sentence was imposed in violation of the Constitution . . . of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). In general, the reviewing court presumes that the proceedings which led to a movants's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). Fundamentally, to prevail in an action under § 2255, a movant must show that a defect in the proceedings resulted in "a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974). The movant bears the burden to allege facts that, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995).
Where a § 2255 movant asserts a basis for relief that the Court cannot definitively rule on from the filings and record, the Court must grant an evidentiary hearing. 28 U.S.C. § 2255(b). "[T]here is a right to counsel in a habeas case when the district court determines that an evidentiary hearing is required." Swazo v. Wyo. Dep't of Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). "If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a[n applicant] who qualifies to have counsel appointed under 18 U.S.C. § 3006A." Rules Governing Section 2255 Cases in the U.S. District Courts 8(c).
Ineffective Assistance of Counsel
"In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. To vindicate this requirement, an attorney for a criminal defendant must provide "reasonably effective assistance." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel, a party must show both that (1) his counsel's performance was unconstitutionally deficient, and that (2) the deficient performance prejudiced the defense. Id. An ineffective assistance of counsel claim fails if either of the prongs is not met. Id. at 697. A court therefore "need not address the Strickland prongs sequentially." Richie v. Mullin, 417 F.3d 1117, 1120 (10th Cir. 2005). Effectiveness of counsel is required at all "critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice." Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).
Analysis
Failure to Appeal
Applicant claims that his attorney failed to file an appeal despite his instructions to do so. Instant Case, doc. 2 at 4. Where a criminal defendant's trial counsel neglects to file an appeal despite the defendant's request that counsel do so, trial counsel is per se ineffective. See Clayton v. Ward, 341 F. App'x 421, 423 (10th Cir. 2009) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)) ("[C]ounsel's failure to file an appeal when the client has requested he do so constitutes deficient and prejudicial performance under Strickland . . . ."). This per se ineffectiveness rule applies even where all alleged bases for appeal in a 2255 motion are meritless. See United States v. Snitz, 342 F.3d 1154, 1156-58 (10th Cir. 2003) (rejecting district court holding that frivolous arguments negated presumed prejudice in failing to file appeal). The remedy for failure to file an appeal as requested by a criminal defendant is resentencing and reopening of the time for appeal. See Rodriquez v. United States, 395 U.S. 327, 332 (1969) (remanding case for resentencing to allow perfection of appeal).
In support of his motion, Applicant attaches an affidavit asserting that he instructed Trial Counsel to file an appeal. Instant Case, doc. 3 at 10. Respondent has filed a contradictory affidavit, signed and sworn by Trial Counsel, asserting that she does not recollect that Applicant instructed her to file an appeal, and that her file on his case does not indicate that he did. Instant Case, doc., Ex. 1 at 1-2.
Because Applicant and Trial Counsel have offered contradictory affidavits regarding whether Applicant requested that Trial Counsel file an appeal on his behalf, the Court cannot, without more, resolve the motion as to this issue. The undersigned concludes that these facts require a limited evidentiary hearing. If the Court adopts this PFRD, the undersigned will order the Clerk of Court to appoint counsel for Applicant with respect to this issue and will schedule such a hearing.
Criminal History Points
Applicant claims that he suffered from ineffective assistance of counsel because Trial Counsel failed to object to the calculation of criminal history points as set forth in the PIR. Instant Case, doc. 2 at 5. He claims that Trial Counsel should have objected because (1) the PIR failed to treat his prior convictions as expunged, and (2) the PIR improperly calculated his criminal history points. Id.
The PIR treated one, but not both, of Applicant's two prior convictions as expunged. PIR at 8-9. The burglary conviction that was not treated as expunged was from the case designated as CF-2007-274. Id. In support of his contention that this case should have been treated as expunged, Applicant offers an order expunging CF-2007-247. Although the numbers are similar, they are not the same. Other than a similar case number, the expungement order offered by Applicant contains nothing that would tie it to the conviction for which Applicant received criminal history points. As such, Applicant has failed to present evidence to meet his burden of proof on this issue. Thus, the undersigned proposes finding that Applicant has not established that his burglary conviction was expunged. If this proposed finding is accepted, the criminal history point in paragraph 31 is correctly assessed.
In addition to his argument that his burglary conviction was expunged, Applicant argues that, even if the conviction was not expunged, his criminal history points were improperly calculated. Applicant states:
Specifically, the Probation Officer added and applied the ("Recency point enhancement"). Pursuant to the United States Sentencing Guidelines U.S.S.G. § 4A1.1(e). The Probation Officer, counted two prior Oklahoma State Court convictions . . . .Doc. 3 at 5.
Specifically, amendment 742-revised the United States Sentencing Guidelines § 4A1.1, to eliminate the ("Recency Point enhancement"), See, subsection (e) of § 4A1.1, ("Criminal History Category"). This [Applicant], did in fact receive a two level enhancement under § 4A1.1(e) [of the United States Sentencing Guidelines], ("Criminal History Category") from a category 1 to a category 3.
. . . .
Specifically, Counsel failed to timely object by then, notifying the Probation Officer, that the ("Recency Point") amendment was sent to Congress on May 1, 2010, and if no further action is taken will be adopted on November 1, 2010.
Applicant appears to argue that he should have been sentenced under the 2010 guidelines and that he would have fared better if he had. Applicant's focus is on the "recency" adjustment under U.S.S.G. § 4A1.1(e) which was not in effect in the 2010 guidelines. Applicant's argument fails first because he was properly sentenced under the 2010 guidelines and second because he did not receive any "recency" points. PIR at 8-10. Instead, Applicant's two additional criminal history points were assessed pursuant to § 4A1.1(d). PIR at 9. Under that section, the Court is directed to: "Add 2 points if the defendant committed the instant offense while under any criminal justice sentence . . . ." USSG § 4A1.1(d). Applicant received two additional points for the deferred sentence of CF-2007-274, and that deferment is not scheduled to end until 2013. PIR at 9. Because Applicant committed his federal crime before that deferment ended, he properly received those two criminal history points.
Because I conclude that Applicant has not established that any of his three criminal history points were incorrectly assessed, I therefore recommend that the Court deny relief as to this issue.
Wherefore, IT IS RECOMMENDED that the Court DENY the motion as to the issue of calculation of criminal history points. Upon resolution of this recommendation, the undersigned will hold an evidentiary hearing on the claim based upon the alleged failure to file a notice of appeal.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.
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GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE