Opinion
Civil Case No. 03-3051-SAC, Criminal Case No. 00-40024-08-SAC
October 14, 2003
MEMORANDUM AND ORDER
The case comes before the court on the defendant Carroll James Flowers' pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dk. 1795) and a supporting memorandum (Dk. 1796). The government has filed a response opposing the relief sought in the motion. (Dk. 1859).
PROCEDURAL HISTORY
On November 20, 2001, the defendant Flowers pleaded guilty to count one of a seventy-seven count indictment in which he was named as a defendant in five of those counts. The day before his plea, the government filed an Information pursuant to 21 U.S.C. § 851 that stated the defendant would be sentenced to increased punishment because of a prior felony drug conviction. The filing states that it was served on the defendant's counsel, J. Richard Lake, by "telefax" on November 19, 2001. (Dk. 1079). In March of 2002, on the defendant's request, the court appointed new defense counsel who was later allowed to withdraw when retained defense counsel, Larry A. Schaffer, entered his appearance for the defendant. On June 19, 2002, the court sentenced the defendant to 240 months imprisonment, and the judgment was filed July 2, 2002. No notice of appeal was filed.
On January 24, 2003, the defendant Flowers filed his petition pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. (Dk. 1795). He asserts three issues: (1) counsel was ineffective in failing to file a notice of appeal; (2) counsel was ineffective in not objecting to the government's failure to satisfy the requirements of 21 U.S.C. § 851; and (3) counsel was ineffective in not objecting to the use of "actual" methamphetamine for sentencing.
INEFFECTIVE ASSISTANCE OF COUNSEL
"An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). "The right to counsel also extends to a defendant's first appeal as of right." Baker, 929 F.2d at 1498 (citing Douglas v. California, 372 U.S. 353 (1963)). To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). To show deficient performance, the defendant must show that his counsel's performance was "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997). To show prejudice, the defendant must establish that, but for counsel's unprofessional errors, there was a reasonable probability that the outcome of his conviction and/or sentencing would have been different. Id. at 1245; see Strickland, 466 U.S. at 694.
FAILURE TO FILE NOTICE OF APPEAL
The defendant Flowers states that he told his counsel of "his desire to appeal" but no notice of appeal was filed. "The Supreme Court has recognized repeatedly over the last thirty years that a lawyer who disregards specific instructions to perfect a criminal appeal acts in a manner that is both professionally unreasonable and presumptively prejudicial." United States v. Snitz, 342 F.3d 1154, 1155-56 (10th Cir. 2003) (citations omitted). Attached to its memorandum, the government submits the affidavit of the retained counsel who represented the defendant at the time of his sentencing. Counsel avers that he has no recollection of the defendant ever asking him to appeal the conviction or sentence. Counsel's averment obviously conflicts with the defendant's allegation of facts.
Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Having alleged facts which if proven would entitle him to relief, the defendant shall be granted an evidentiary hearing. Rule 8(c) of the Rules governing § 2255 proceedings provides that "[i]f an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)." The court shall appoint counsel to represent the defendant in these proceedings subject to discovering that the defendant now has the financial ability to retain counsel or actually has retained counsel for this purpose.
IT IS THEREFORE ORDERED that an evidentiary hearing shall be held on the defendant's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dk. 74) at the time and date provided by the court in a subsequent notice;
IT IS FURTHER ORDERED that the counsel shall be appointed to represent the defendant in this proceeding.