Opinion
Case No. 3:04CV7777, Case No. 3:02CR750.
March 21, 2005
ORDER
This is a petition under 28 U.S.C. § 2255 in which the petitioner challenges the sentence imposed following revocation of his supervised release. He does not challenge the finding that he violated the conditions of release. He asserts, rather four challenges to his attorney's effectiveness. The first three of these challenge the adequacy of representation at the revocation hearing, while the petitioner's fourth claim challenges counsel's performance at the time of his original sentence.
For the reasons that follow, Claims Two, Three, and Four shall be denied. An evidentiary hearing shall be scheduled with regard to the petitioner's first claim.
The petitioner plead guilty to a three count information for failing to report work while receiving Social Security disability benefits. He was sentenced to three concurrent terms of fifteen months, to be followed by a three-year term of supervised release.
Following the petitioner's release from imprisonment, he commenced serving his term of supervised release. He violated the conditions of release by committing a state offense (attempted theft), for which he received a term of six months state imprisonment.
After serving that state term, the petitioner appeared before the undersigned for a revocation hearing. He admitted the violations and his supervised release was revoked. He was then sentenced to commitment to the Bureau of Prisons for a term of eighteen months, to be followed by a term of supervised release for eighteen months, with the first six months of that term to be served in a halfway house.
Petitioner's first claim is that his attorney failed, despite his request that she do so, to file a notice of appeal after the revocation hearing. The government submits an affidavit from the attorney stating that the petitioner did not ask her to file a notice of appeal. There is, accordingly, a conflict of fact which must be resolved at an evidentiary hearing.
This is so, even though, for the reasons discussed below, the petitioner cannot prevail on the merits of his challenges to his sentence following revocation of supervised release. The Supreme Court has held that failure of defense counsel to file a notice of appeal despite being instructed to do so by his client constitutes per se ineffective assistance of counsel. Rodriguez v. U.S., 395 U.S. 437 (1969). This is so without regard to whether there exists a potentially meritorious issue that could have been raised on direct appeal. Id.; see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."); El-Amin v. U.S., 1997 WL 778022, *1 (6th Cir.) (Unpublished Disposition) ("counsel's failure to timely file a notice of appeal from a criminal conviction, when requested to do so by the defendant, has been widely held to constitute ineffective assistance of counsel per se; the petitioner need not show additional prejudice by specifying meritorious issues he would raise were his right to appeal reinstated."); U.S. v. Maxwell, 2002 WL 1784263, *3 (W.D.Tenn.).
Thus, even though the petitioner is not asserting a challenge to his post-revocation sentence that would have any merit, he may still be entitled to restoration of his right to appeal. This depends on whether he asked his lawyer to file a notice of appeal, but she failed to do so. Determination of that disputed fact requires an evidentiary hearing.
Counsel shall be appointed for the petitioner and an evidentiary hearing scheduled on this issue. With regard to Claim Two, the Supreme Court's decision in Blakely does not come into play in this case because this court did not engage in any fact-finding at the revocation hearing that trespassed on the realm of the jury. Petitioner's sentence following revocation (which, in turn, followed admission by him of the underlying violations) did not involve any enhancing facts or factors that should have been decided by a jury. The sentence was simply a reflection of my view of the seriousness of the violations and what was the appropriate judicial response to those violations.
Petitioner's third claim — that this court could not impose a term of supervised release because the petitioner received a twenty-four (rather than an eighteen) month term of imprisonment — is without merit.
To be sure, as the petitioner correctly points out: a) the maximum potential term of imprisonment following revocation of supervised release is twenty-four months; and b) if he received a term of that length, he could not thereafter be placed on supervised release.
Petitioner claims that the condition of post-revocation supervised release (that he serve the first six months of such release in a halfway house) constituted an additional term of six months imprisonment. Thus, as he computes his sentence, his stated term of eighteen months imprisonment was followed by an additional six months of imprisonment while he was in the halfway house, for a total term of imprisonment of twenty-four months.
In support of his contention that he served twenty-four months imprisonment, and thus could not be required thereafter to serve a term of supervised release, the petitioner relies on Monahan v. Winn, 276 F. Supp. 2d 196 (D. Mass. 2003). That case, the petitioner contends, stands for the proposition that commitment to a halfway house constitutes imprisonment.
Petitioner is mistaken. The court in Monahan dealt specifically with a change in a policy of the Bureau of Prisons, whereby certain offenders would no longer be designated to serve a portion of their terms in a halfway house. The court noted the distinction between designation of a prisoner by the Bureau of Prisons to a halfway house and imposition of a term of halfway house residence as a condition of supervised release. Id. at 208 ("While an inmate may serve his or her time in community confinement either as part of BOP custody or as a condition of supervised release, there are important differences.").
The Monahan court did not, as petitioner asserts, hold that all time spent in a halfway house constituted imprisonment. Time in a halfway house constitutes imprisonment only when the Bureau of Prisons designates a prisoner in its custody to such facility. Time spent in a halfway house as a condition of release does not constitute imprisonment. See U.S. v. Chavez, 204 F.3d 1305, 1315 (11th Cir. 2000) ("residence in a halfway house [as a condition of probation] is not tantamount to imprisonment."); U.S. v. Dowling, 962 F.2d 390, 394 n. 10 (5th Cir. 1992) ("a special condition of probation confining one to a halfway house cannot qualify as a "term of imprisonment.").
This false premise — that conditioning supervised release on service of a portion of the term of supervised release in a halfway house constitutes imposition of a term of "imprisonment" — underlies two of the petitioner's four claims for relief. These are the ineffective assistance of counsel claims in Claim Two, which claims the attorney should have asserted a Blakely challenge to his sentence following revocation, and Claim Three, which claims the attorney was ineffective for not challenging the term of supervised release on the basis that no supervised release could be imposed due to the alleged twenty-four month period of imprisonment.
The petitioner's remaining challenge is that his attorney was ineffective because at the time of the original sentencing she did not urge the undersigned to refrain from imposing a term of supervised release. Failure to make such argument could not constitute ineffective assistance of counsel, because this court was required to impose a term of supervised release. U.S. v. Lankford, 2000 WL 1175592, *2 (6th Cir.) (Unpublished disposition) (noting that the Sentencing Guidelines "mandate a sentencing court to order . . . a period [of supervised release] whenever it imposes a prison term in excess of one year.").
Thus, even if petitioner's attorney sought to have me refrain from imposing the supervised release term that he was later to violate, I had no option under the Guidelines but to impose such condition.
Petitioner cannot prevail if he were to recast this challenge as one arising under U.S. v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), because his conviction was final before the decision in that case. See Humphress v. U.S., 398 F.3d 855, 862 (6th Cir. 2005) ( Booker inapplicable where conviction was final before date of that decision).
Conclusion
Petitioner's only viable claim is that his attorney provided ineffective assistance of counsel when she failed to file a notice of appeal, though petitioner asked her to do so, following revocation of his supervised release. Given the conflict between petitioner's allegation that he asked his attorney to file such notice and her affidavit that no such request was made, it is necessary to conduct an evidentiary hearing as to this claim.It is, therefore,
ORDERED THAT:
1. Petitioner's second, third, and fourth claims be, and the same hereby are dismissed;
2. Adjudication of petitioner's first claim held in abeyance pending an evidentiary hearing, which shall be scheduled following appointment of counsel for the petitioner.
The Clerk shall refer this case to the United States Magistrate Judge for appointment of counsel, to be followed by the holding of a scheduling conference, which is scheduled for April 25, 2005 at 11:00 a.m.
So ordered.