Opinion
CRIMINAL ACTION NO. 05-92-WOB, (Civil Action No. 07-146-WOB).
March 13, 2008
REPORT AND RECOMMENDATION
On September 10, 2007, Defendant Rickey J. Walls filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The United States filed a motion to dismiss based upon the defendant's express waiver of his right to file a post-conviction motion. The defendant has failed to respond to the Government's motion. Pursuant to local practice, this matter was referred to the undersigned for initial consideration and a report and recommendation. 28 U.S.C. § 636(b).
I. Procedural Background
On November 14, 2005, a grand jury returned an indictment charging the defendant with the following counts: conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 (Count 1); use of a short-barreled shotgun in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(I) (Count 2); use of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 3); being a convicted felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1) (Count 4); possession of a firearm by a prohibited person 26 U.S.C. § 922(g)(9) (Count 5); and possession of an unregistered sawed-off shotgun in violation of 18 U.S.C. § 5861(d) (Count 6). DE #1, Indictment at pp. 1-4. In addition, Counts 7, 8, and 9 provided for forfeiture of arms pursuant to 21 U.S.C. § 853, 18 U.S.C. § 924(d)(1), 28 U.S.C. § 2461, 28 U.S.C. § 5872, and 28 U.S.C. § 2461.
On July 7, 2006, defendant appeared for rearraignment and agreed to enter a plea of guilty to Counts 1, 2, and 7 pursuant to a written plea agreement. Plea Agreement ¶ 1. The United States agreed to dismiss the remaining counts of the Indictment that were pending at time of sentencing. Plea Agreement ¶ 1. Defendant agreed to waive his right to appeal and his right to collaterally attack the guilty plea, conviction, and sentence. Plea Agreement ¶ 10. The plea agreement stipulated that the minimum mandatory statutory sentence for Counts 1 and 2, to run consecutively, was thirty years. Lastly, the agreement reflected that defendant understood the agreement, that defendant's attorney had fully explained the agreement to defendant, and that defendant was entering into the agreement voluntarily. Plea Agreement ¶ 15.
On November 9, 2006, defendant was sentenced to 360 months imprisonment in accordance with the written plea agreement. The sentence included 240 months on Count I and 120 months on Count II, to be served consecutively. DE #62, Judgment at pp. 1-2.
Defendant filed his current motion on September 14, 2007. With this motion, defendant presents two grounds for relief: (1) ineffective assistance of counsel and violation of his Fifth and Sixth amendment rights due to his counsel's failure to file an appeal; and (2) an argument that he is being imprisoned "contrary to law." DE #65, Motion to Vacate at pp. 3-4. So far as the court can determine, defendant's second claim is nonspecific other than claiming that the defendant has been imprisoned in violation of his constitutional rights; therefore, the defendant's second claim is construed as indistinguishable from the first. In support of both claims, the defendant has attached as exhibits copies of five letters allegedly written to his attorney requesting an appeal, together with one letter written to the Honorable William O. Bertelsman reflecting the same.
II. Analysis
A. Waiver of Appeal Rights and Post-Conviction Relief
Although the defendant requests "immediate release" and/or an order vacating his sentence, the only relief to which the defendant would be entitled in this § 2255 proceeding based upon the claim presented is the right to file a belated appeal. Even this limited relief is barred, however, by the express waiver executed in the defendant's written plea agreement, and reiterated in the colloquy with the court during the plea proceedings. A motion brought pursuant to 28 U.S.C. § 2255 is a collateral attack on a conviction. Both in his written agreement and orally at the time of his plea proceedings, the defendant expressly and unconditionally waived his right to appeal and the right to collaterally attack his guilty plea, conviction, and sentence. Therefore, the defendant's present § 2255 motion is barred by the express terms of his plea agreement.
A waiver is a "relinquishment or abandonment of a known right." United States v. Olano, 507, U.S. 725 (1993). Even a constitutional right may be waived, as long as a defendant did so by knowingly and voluntarily entering into a plea agreement. See, e.g., United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004). A waiver in a plea agreement is considered knowing and voluntary if the defendant testified that his guilty plea was not coerced and that he reviewed and understood the agreement's terms. See Davila v. United States, 258 F.3d 448, 451. Even a collateral attack based on ineffective assistance of counsel may be waived. As the Sixth Circuit stated, "when a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his or her sentence, he or she is precluded from bringing a claim of ineffective assistance of counsel based on 28 U.S.C. § 2555." Id. The rare exception to this rule is when the collateral attack concerns the validity of the waiver itself; otherwise, such a waiver would never be effective.
As a practical matter, virtually all claims brought in § 2255 motions are subsumed under the "ineffective assistance of counsel" umbrella. Any claim not framed as the ineffective assistance of counsel will generally be dismissed as either 1) barred because it was previously reviewed on direct appeal and may not be relitigated; or 2) barred as procedurally defaulted because it was not previously presented on direct appeal. See generally Wright v. United States, 182 F.3d 458 (6th Cir. 1999); United States v. Frady, 456 U.S. 152 (1982) (2255 not a substitute for direct appeal). By contrast, ineffective assistance of counsel claims are rarely cognizable on direct appeal, and therefore are appropriately raised first in post-conviction proceedings.
There can be no doubt that defendant knowingly, intelligently, and voluntarily waived both his right to appeal and his right to collaterally attack his sentence in the present case. In pertinent parts, the plea agreement signed by defendant reads:
10. "The Defendant waives the right to appeal and the right to attack collaterally the guilty plea, conviction, and sentence, including any order of restitution."
Plea Agreement ¶ 10.
15. ". . . the Defendant and the Defendant's attorney acknowledge that the Defendant understands this agreement, that the Defendant's attorney has fully explained this Agreement to the Defendant, and that the Defendant's entry into this Agreement is voluntary." Plea Agreement ¶ 15.
Additionally, the waiver was openly discussed during the plea proceedings before the court. The Court asked the Assistant United States Attorney to summarize the plea agreement in open court.
THE COURT: All right. Go over the plea agreement, please. Make sure he understands that.
MR. BRACKE: We've agreed to dismiss the other counts that affect Mr. Walls at sentencing. We've agreed that the — to apply the guideline manual from November 1, 2005. Defendant understands that the minimum statutory punishment for Count 1 is 20 years imprisonment. The minimum statutory punishment for Count 2 is 110 years imprisonment to run consecutively to Count 1. The relevant conduct is listed in paragraph 3 of the agreement that the Defendant has signed.
. . .
. . . . There is no agreement about his criminal history category. The Defendant has agreed not to file a downward departure motion or a request for a sentence below the minimum recommended by the guidelines. The United States has agreed not to impose a sentence at the low end of the advisory guideline range. The Defendant waives the right to appeal and the right to collaterally attack the guilty plea conviction and sentence.
The Defendant has agreed to cooperate. . . . The Defendant understands that the determination as to whether the Defendant has provided substantial assistance solely belongs to the United States. . . .
The Defendant agrees to the administrative or judicial forfeiture of firearms listed in Count 7 of the indictment. . . .
THE COURT: So we have a mandatory minimum of 30 years, is that right, when we take the two counts together?
MR. BRACKE: That's correct. . . .
. . .
THE COURT: Sir, you're looking at 30 years on these charges unless you can get out from under it some way by cooperating. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand the other provisions of the plea agreement?
THE DEFENDANT: Yes, sir.
Doc. 72, TR. Rearraignment at pp. 5-7 (emphasis added). The only time appeal rights "under some circumstances" were mentioned was following an extensive discussion by the court of the fact that discovery of additional convictions could increase the defendant's sentence.
THE COURT: Do you also understand that after it has been determined what guidelines apply to the case, the Judge has the authority in some circumstances to impose a sentence that is more severe or less severe than the sentence called for by the guidelines?
THE DEFENDANT: Yes, sir.
THE COURT: Do you also understand that under some circumstances you or the Government may have the right to appeal any sentence that I impose?
THE DEFENDANT: Yes, sir.Id. at 7. As the transcript reflects, the court mentioned appeal rights only as a possibility, noting that either party "may" have the right "under some circumstances." However, just minutes before the court had confirmed the defendant's understanding that the plea agreement required him to give up both his right to appeal and his right to file a post-conviction or collateral proceeding. Later, the court asked defendant about his opportunity to discuss the case with his attorney:
THE COURT: Sir, have you had sufficient opportunity to discuss this case with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with the way he's represented you?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions about the plea agreement?
THE DEFENDANT: No, sir.Id. at 8. Lastly, the court asked defendant "Has anyone made any promises to you, other than the plea agreement, that have induced you to plead guilty?" Defendant responded "No, Sir." Id. at 9. On the basis of the defendant's responses, the court properly accepted the defendant's plea agreement.
The transcript of the sentencing proceeding reflects no alteration by counsel, the defendant, or the court of the defendant's previous waiver of his appeal rights and of his right to file a post-conviction motion in his plea agreement. At sentencing the court instructed the Clerk to read to the defendant standard language concerning the right of appeal, derived from Fed.R.Crim.P. Rule 32, which language begins in pertinent part:
You are now notified by this court that you have a right to appeal your case to the Sixth Circuit Court of Appeals (unless you have validly waived that right), which on appeal will review your sentence and determine whether it was imposed in violation of applicable law If you are without the services of an attorney and desire to appeal, upon request, the Clerk of the Court shall prepare and file forthwith a Notice of Appeal on your behalf.
Doc. 59 (emphasis added) The defendant signed the "Court's Advice of Right to Appeal" document, acknowledging that the above language was read to him in open court.
These exchanges, when combined with the express waiver provisions of the plea agreement, leave no doubt that defendant knowingly, intelligently, and voluntarily waived his right to appeal and, more importantly, his right to bring the instant collateral attack his guilty plea and sentence. Therefore, his current motion is without merit. See Nunez v. United States, 495 F.3d 544, 547 (7th Cir. 2007) (holding that waiver of collateral attack bars right to claim ineffective assistance of counsel, except for narrow grounds of relief challenging validity of waiver).
The trial court never advised the defendant that his waiver of his right to collaterally attack his conviction was anything less than a complete bar to post-conviction relief. The fact that the Court referenced the right to appeal the sentence under some circumstances "unless you have validly waived that right" does not alter this conclusion. The Court's advice was not misleading or incorrect, as the defendant had in fact validly waived his rights both to file an appeal and to file a collateral attack on his conviction. Moreover, as held in United States v. Fleming, 239 F.3d 761, 765 (6th Cir. 2001), the terms of the plea agreement prevail over any contrary statements by the court.
B. On Facts Presented, Roe v. Flores-Ortega Does Not Change Result
Although the defendant has filed no response to the Government's motion to dismiss on the basis of his waiver of collateral relief, his underlying claim — that his attorney failed to follow his expressed intent to file a direct appeal — requires additional discussion. First, I would hold that under published Sixth Circuit case law, no exception to the validity of the defendant's waiver of his right to file a post-conviction motion exists, except where the claim itself attacks the validity of the waiver. See Davila, supra. In other words, the Sixth Circuit has previously held that a defendant may validly waive the right to file a post-conviction motion based upon the ineffective assistance of counsel. A valid waiver does not become invalid if a defendant later discovers that the waiver actually cost him the opportunity to bring a meritorious claim, as opposed to a frivolous one.
1. Flores-Ortega Distinguished
The defendant's underlying claim is based on Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000), in which the Supreme Court reiterated previous holdings that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal" is presumed to be constitutionally deficient. Id. at 476,120 S.Ct. at 1035. In other words, where a defendant timely instructs his attorney to file a notice of appeal, characterized as a "purely ministerial task," counsel presumptively violates the Sixth Amendment if he or she fails to do so. Id. at 477. When the defendant has not clearly conveyed his wishes one way or the other, however, the Supreme Court instructed trial courts considering counsel's performance under Strickland to first ask
a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term "consult" to convey a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal . . . If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?Id. at 478, 120 S.Ct. at 1035.
As is evident from the above discussion, the Court in Roe v. Flores-Ortega was primarily concerned with defining the scope of counsel's constitutional duty to consult with his or her client about the right to appeal when a defendant has not clearly instructed counsel to file an appeal. The Court declined to mandate a duty to consult in every criminal case, holding instead that such a duty exists only where a rational defendant would want to appeal (based upon the existence of nonfrivolous grounds for appeal), or where a particular defendant has demonstrated interest in appealing. Id. at 479, 120 S. Ct. at 1036. The Court suggested that in cases when the defendant pleads guilty, "the court must consider such factors as whether the defendant received the sentence bargained for . . . and whether the plea expressly reserved or waived some or all appeal rights," in order to determine whether a rational defendant would have desired an appeal or had demonstrated sufficient interest in an appeal. Id. The Court did not address the impact of a full waiver of appeal rights.
The facts of the instant case arguably take it outside of Roe v. Flores-Ortega, because the defendant executed both a waiver of his right to file the instant collateral proceeding, and a full waiver of appeal rights. That Flores-Ortega does not dictate the result in cases where a defendant has voluntarily executed a full waiver of appeal rights but later changes his mind can be inferred from the partial dissent of Justice Souter (joined by Justices Stevens and Ginsburg). Justice Souter wrote:
[T]he crucial question in this case is whether, after a criminal conviction, a lawyer has a duty to consult with her client about the choice to appeal. The majority's conclusion is sometimes; mine is, almost always in those cases in which a plea of guilty has not obviously waived any claims of error.Id. at 488, 120 S.Ct. at 1040-41 (emphasis added). Although Justice Souter wrote separately to emphasize that he believed the duty to consult concerning appeal rights was broader than that suggested by the majority, he drew the line in cases where counsel presumably had consulted with his client and the defendant had voluntarily waived all appeal rights. In a related footnote, Justice Souter explained that no duty to consult would exist, for example, in cases in which appeal rights had been waived:
I say "almost" always, recognizing that there can be cases beyond the margin: if a legally trained defendant were convicted in an error-free trial of an open-and-shut case, his counsel presumably would not be deficient in failing to explain the options. This is not what we have here. Nor is this a case in which the judge during the plea colloquy so fully explains appeal rights and possible issues as to obviate counsel's need to do the same; such a possibility is never very likely and exists only at the furthest reach of theory, given a defendant's right to adversarial representation, see Smith v. Robbins, at 296-297, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (SOUTER, J., dissenting). Finally, of course, there is no claim here that Flores-Ortega waived his right to appeal as part of his plea agreement; although he pleaded guilty, the record shows that he and the State argued before the trial court for different sentences, and he had little understanding of the legal system. The fact of the plea is thus irrelevant to the disposition of the case.Id. at n. 1 (boldface added).
The question presented here is whether the Flores-Ortega presumptive prejudice standard applies when a defendant willingly accepts a plea after consultation with counsel which foregoes his right to appeal, but subsequently changes his mind. No published Sixth Circuit decision yet holds that Roe v. Flores-Ortega mandates that counsel file an appeal even if that defendant has no appealable issues and has expressly and fully waived all rights to appeal. On the other hand, an unpublished Sixth Circuit decision holds precisely that.
Arguably, such an appeal will always be futile because the appellate court will nearly always dismiss on the basis of the waiver. When an appeal would be futile due to the jurisdictional bar of timeliness, counsel does not violate the Sixth Amendment if he fails to abide by his client's request to file an untimely notice of appeal. It is not entirely clear why requesting an appeal following execution of a complete waiver of appeal rights should differ, absent an attack on the validity of the plea or the waiver itself.
Waivers in plea agreements are negotiated and therefore are not standardized. Although it is significant that the waiver of both appeal and post-conviction proceedings in this case is unlimited, other waivers are less complete and permit appeal on limited grounds.
Applying similar reasoning, many trial courts initially held that an attorney does not violate the Sixth Amendment by failing to file a notice of appeal in cases in which the defendant has waived his right to appeal and/or to file a collateral attack. See e.g., Jolaoso v. United States, 142 F. Supp.2d 306 (E.D.N.Y. 2001) (complete waiver of appeal rights foreclosed § 2255 claim based upon failure to file notice of appeal, distinguishing Roe); Hargrove v. United States, 2004 WL 2123497 (W.D.N.Y. 2004) (same); Alcantara v. United States, 2003 WL 102873 (S.D.N.Y. 2003); Lopez v. United States, 2002 WL 1471540 (E.D.N.Y. 2002).
However, as the post- Flores-Ortega case law has developed, a total of seven courts of appeals now have held in published decisions (with varying degrees of enthusiasm and dismay) that the presumptive prejudice standard of Flores-Ortega not only applies but cannot be rebutted. In short, counsel must file an appeal whenever requested to do so by a defendant, regardless of an express waiver of the right to appeal, and violates the Sixth Amendment by failing to do so. See Campusano v. United States, 442 F.3d 770, 772-77 (2d Cir. 2006) (vacating trial court's order); United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007) (holding that attorney required to file notice of appeal even when contrary to plea agreement and harmful to client's interests); United States v. Tapp, 491 F.3d 263 (5th Cir. 2007); Watson v. United States, 493 F.3d 960 (8th Cir. 2007); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir. 2005) (reading Flores-Ortega as requiring appeal upon request even when contrary to waiver in plea agreement and harmful to defendant, despite "troubling" result that is "contrary to common sense"); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir. 2005) (applying Flores-Ortega in case of partial waiver of appeal rights). Under the reasoning of these courts, counsel would have an obligation to file a notice of appeal in violation of the plea agreement, followed by an Anders brief.
The First and Third Courts of Appeals have not yet decided the issue in a published decision. At least two unpublished decisions within the Third Circuit support a conclusion that either Flores-Ortega does not apply in cases of complete waivers, and/or that the presumption of Flores-Ortega prejudice is rebutted by the existence of a waiver. See e.g., Kearney v. United States, 2006 WL 1784349 (D.N.J. 2006); Serrano v. United States, 2005 WL 2129922 (D.N.J. 2005). By contrast, as mentioned, an unpublished decision within this circuit applied Flores-Ortega even in the face of a clear waiver. See Carrion v. United States, 107 Fed. Appx. 545, 547 (6th Cir. 2004) (remanding, holding that "counsel's failure to file a notice of appeal as the defendant requested establishes ineffective assistance of counsel per se, irrespective of whether the appeal would be successful").
In a well-reasoned opinion, the Seventh Circuit Court of Appeals recently broke with the majority in Nunez v. United States, 495 F.3d 544 (7th Cir. 2007), petition for certiorari filed, 76 USLW 3349 (Dec. 18, 2007). The Nunez court reasoned that a lawyer has a duty to avoid frivolous litigation and to act in the best interests of his client. Because an appeal in violation of a clear waiver is frivolous and could do great harm by forfeiting the benefit of the plea bargain if in violation of a plea agreement, the Seventh Circuit held that such cases fall outside the scope of Flores-Ortega and do not mandate that the lawyer act as "the client's puppet." Id. at 547. The court distinguished Flores-Ortega on the basis that the facts of that case limited its holding to a "ministerial" filing of a notice of appeal.
[F]iling cannot be called "ministerial" when the defendant has waived any entitlement to appeal, not only in the plea agreement but also in open court. See Fed.R.Crim.P. 11(b)(1)(N). There is no constitutional entitlement to revoke a waiver; to the contrary, waivers must be enforced even if the defendant changes his mind.Id. The court distinguished the procedure outlined in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) as applicable only to cases in which there is right to appeal.
Mindful of the fact that I go against the weight of both the unpublished Carrion decision and published case law from a majority of the courts of appeals, I would adopt the reasoning of the Seventh Circuit in Nunez and hold that a complete waiver of appeal rights removes this case from the scope of Flores-Ortega. Alternatively, I would hold that the presumption of prejudice in Flores-Ortega is rebutted in this case by the existence of a valid waiver of appeal rights.
2. Affidavit of Counsel Sufficient Evidence that Defendant Did Not Wish To Appeal
Based upon my conclusions that: 1) the defendant's valid waiver of his right to file a collateral post-conviction motion bars this proceeding; and 2) the defendant's valid waiver of his right to appeal dooms his underlying ineffective assistance of counsel claim, I conclude that the defendant's motion to vacate must be denied as a matter of law. Accordingly, I find no cause to conduct an evidentiary hearing in order to determine the factual underpinnings of the defendant's claim; to wit, whether counsel did or did not fail to follow the defendant's expressed instructions to file a notice of appeal.
However, even if I were to ignore both the waiver of defendant's right to file an appeal and his right to file a collateral post-conviction motion and hold that Flores-Ortega fully applies, I would conclude that an evidentiary hearing is not necessary in light of the wholly credible statements made by trial counsel in an affidavit filed in support of the Government's motion to dismiss. Section 2255 provides that a court shall hold an evidentiary 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(b). Counsel's affidavit repeatedly states that the defendant agreed not to file an appeal by virtue of the plea agreement, and that the defendant "absolutely understood" his waiver of his right to appeal and did not request an appeal at any time. Doc. #75, Exhibit 1, ¶¶ 2, 4, 8, 9.
In his original motion, defendant paints a very different picture of his awareness of his waiver of appeal rights. Defendant has attached a total of five letters allegedly addressed to counsel and to the court which purport to seek an appeal of his conviction and sentence. None of the letters specify any grounds for appeal whatsoever.
The defendant alleges that he mailed three of the letters on November 9, November 12, and November 15, while the remaining two are dated November 20, 2006. According to defendant, he mailed all five of the letters from the Boone County Jail. The first four letters were addressed to his trial attorney, Mr. F. Dennis Alerding. Three of them reflect that the defendant served additional copies on the Clerk of this Court and on Judge Bertelsman; the November 15 letter reflects service on Judge Bertelsman but not on the Clerk of Court. Because the letters are relevant and not lengthy, they are set forth nearly in their entirety:
The first letter to counsel, dated the same date as the defendant's sentencing on November 9, 2006, states:
I'm placing this letter to you as you stated after sentencing. You need me to put in writing that I wish to have you file a appeal. I wish for you to file a appeal in my behalf. And as you stated at court that you wish not to be my lawyer after this appeal was filed. Dose that mean that the court gives me a new lawyer.
The second letter, dated November 12, 2006, reiterates the same request:
I have not heard from you or your office, have you filed my appeal. I tryed to call your office but they will not take my calls. I will have my family try calling your office to speak to you in my behalf. Please let me know if you have filed my appeal.
The third letter to counsel, dated November 15, 2006, states:
I have wrote to you a number of time. I tryed to call your office. They will not take my calls — my family has called your office and left a message but you haven't called them back. Have you filed my appeal. I have about 7 days left I had my family call the Clerk of Courts to see if you filed these papers to Judge Bertelsman yet. If you don't won't to be my lawyer then just fill my appeal. So the Judge can give me another lawyer. . . . I have the right to appeal. The Judge said it at sentence.
The fourth letter to counsel states:
My family called the Clerk of Courts office You have not filed any papers toward my appeal. I have the right to appeal my sentence you are violating my constitutional right and not filing my appeal yet. You need to file to Judge Bertelsman or I'll send him a letter myself ask him if I have the right to appeal. Since you are screwing around and avoiding my phone calls and letters from me and my family. Also I send the court a copy of the letters I sent you to show that you are not filing my appeal and that my constitutional right are been violated by you.
The fifth letter, addressed to Judge Bertelsman and bearing the same November 20, 2006 date as the fourth letter to counsel, states:
I have been writing my lawyer trying to get him to file my appeal before the 10 day are up. Since I was sentencing. My lawyer will not take my calls nor my family calls. I wish to file my appeal, but my lawyer is giving me the run around. Here are copies of the letters I wrote him. Is there any way that you could call him and ask him why he refuses to file my appeal. I thought I have the right under the constitution to appeal my sentence. That what you said at my sentencing or was that lie. So please help me and I wish to file for a new lawyer on my appeal.
All five of the letters attached as exhibits to defendant's motion to vacate his conviction and sentence bear the appropriate case number. Curiously, although the signature reflected on the motion itself is "Rickey J Walls," the signature on the letters appears as variously, "Rickey J Walls," "Ricky J Walls" (without the "e" in Rickey) and "Rick J Walls" (November 15 letter).
Even more curiously, notwithstanding the reflection of service of the letters on this court and on District Judge William O. Bertelsman, not a single copy of any of the five letters appears in the record of this case. It is the practice of the Clerk of this Court to electronically scan and file in the record any correspondence or other pleading received from a prisoner which pertains to an active case. This is particularly important concerning correspondence relating to appeals, since as indicated in the court's advice to the defendant at sentencing, the Clerk of Court will prepare a notice of appeal on behalf of an unrepresented defendant upon request. Similarly, it is the practice of each judge of this district to submit for electronic filing to the Clerk of Court any correspondence pertaining to a case which has been misdirected to the judge's chambers. That this practice would have been ignored not just once but on nine separate occasions regarding an active criminal case (five times by Judge Bertelsman and four times by the Clerk of Court) strains credulity, to say the least.
As stated, Mr. F. Dennis Alerding, the defendant's trial attorney, has filed an affidavit in support of the Government's motion to dismiss the defendant's post-conviction claims. Not surprisingly given the court's own records, Mr. Alerding's affidavit reflects that "[t]he Affiant pulled out his old file and in that file found none of the letters that were allegedly sent to the Affiant." The affidavit further reflects that the defendant never indicated in conversation that he wanted to take an appeal, that the defendant "absolutely understood that he had waived his right to appeal," that the defendant had no appealable issues and "did not request me to file an appeal for him within the time." Doc. 75, Exhibit 1.
Although the defendant's original motion to vacate includes a declaration "under penaltly [sic] that the foragoing [sic] is true and Correct," the defendant filed no response to refute the sworn affidavit of his former attorney that counsel never received any letters or other communication regarding defendant's intention to appeal. In light of the fact that the defendant's allegations (of having timely requested an appeal) are refuted by the record in this case and the affidavit of trial counsel, and because the defendant's waiver of his appeal and post-conviction rights was knowing, voluntary, and unequivocal, the court is not required to accept the defendant's contrary allegations.
While this court does not believe that the defendant actually mailed any letters to counsel requesting an appeal, it is not necessary for the court to make a factual finding on whether the defendant mailed the letters. Rather, the court finds that counsel did not receive any communication based upon the unrebutted affidavit of counsel and the corroborative evidence that no letters appear in the records of this court.
Following Flores-Ortega, having concluded based upon the unrebutted affidavit of trial counsel that he never received any of the letters or other instruction from the defendant that he wished to appeal, this court must next determine whether counsel consulted with the defendant concerning his appeal rights. Counsel's affidavit is completely silent on whether he discussed appeal rights and/or the effect of the defendant's waiver following the court's acceptance of the plea and entry of judgment, or whether the defendant reiterated in any such discussion his previous agreement to waive all rights to appeal. The affidavit reflects only counsel's belief that "he is under no obligation to file an appeal for a Defendant with no appealable issues, when the sentence is imposed in strict accordance to the mandatorily imposed sentence, and where the Defendant has waived his right to an appeal." Id. at ¶ 10. As discussed extensively infra, this court would agree with counsel's interpretation, but many courts have reached a different conclusion. In light of Roe v. Flores-Ortega, this court has previously advised members of the criminal defense bar that "it would be the better practice for all members of the criminal bar . . . to make it a standard practice to consult concerning a defendant's right to appeal, regardless of whether the defendant has chosen to plead guilty. Ideally, this conversation would be documented in counsel's records along with a record of the defendant's decision to appeal or not to appeal." United States v. Commodore, Covington Criminal Action No. 04-08-JBC.
Based upon counsel's affidavit, I conclude that counsel did not specifically consult with the defendant concerning his appeal rights immediately after sentencing, even though the waiver of those rights had been adequately discussed prior to the defendant's guilty plea. However, on the facts of this case, counsel had no duty to consult with the defendant concerning his right to appeal; therefore, his failure to do so did not violate the Sixth Amendment. As the majority explained in Flores-Ortega, in determining whether counsel has a constitutional duty to consult with his client concerning appeal rights where no clear instructions have been received, trial courts must "consider such factors as whether the defendant received the sentence bargained for . . . and whether the plea expressly reserved or waived some or all appeal rights." Here, the unrebutted affidavit of counsel reflects that he received no indication that the defendant wished to file an appeal. Where counsel receives no actual notice that the defendant wishes to appeal, and counsel was aware of the defendant's express and complete waiver of all appeal rights, the defendant's desire to plead guilty, and the lack of any non-frivolous grounds for appeal, it was not Strickland error for counsel to fail to consult with his client concerning an appeal immediately following the entry of judgment. On the facts presented, counsel did not violate Flores-Ortega by failing to advise the defendant concerning his appeal rights post-judgment, because no rational defendant would have desired an appeal Accord Parsons v. United States, 505 F.3d 797 (8th Cir. 2007) (affirming denial of Flores-Ortega claim in light of credible testimony by counsel that he did not hear defendant's oral request to appeal, in light of waiver of appeal rights in guilty plea).
Other courts have agreed on similar facts that a trial court reviewing a § 2255 motion is not required to conduct an evidentiary hearing. Cummings v. United States, 84 Fed. Appx. 603, 605, 2003 WL 23140049 (6th Cir. 2003) (affirming denial of § 2255 motion where district court credited trial counsel's affidavit stating that defendant had not asked him to file appeal); Garner v. United States, 2006 WL 2585066 (E.D. Tenn. 2006) (affirming denial of § 2255 motion, crediting counsel's affidavits that defendant did not request appeal over contrary illogical statement of defendant that he requested appeal); Odom v. United States, 229 F.3d 1153 (Table), text available at 2000 WL 1175598 (6th Cir. 2000); Houston v. United States, 2006 WL 13213 (E.D. Tenn. 2006) (crediting counsel's affidavit). A petitioner's self-serving statements in an affidavit that are contradicted by a credible version of events in an affidavit from his trial counsel may be incredible as a matter of law. See e.g., Gibson v. United States, 2007 WL 210417 No. CV-06-5740 *4 (E.D.N.Y. Jan. 25, 2007).
III. Conclusion and Recommendation
For the reasons stated herein, IT IS RECOMMENDED THAT the defendant's motion to vacate his conviction and sentence be denied, that the motion of the United States to dismiss [Doc. #] be granted, and that this case be dismissed from the active docket.
Particularized objections to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service or further appeal is waived. U.S. v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140, 155 (1985). A general objection that does not "specify the issues of contention" is not sufficient to satisfy the requirement of a written and specific objection. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (citing Howard v. Secretary of HHS, 932 F.2d 505, 508-09 (6th Cir. 1991)). Poorly drafted objections, general objections, or objections that require a judge's interpretation should be afforded no effect and are insufficient to preserve the right of appeal. Howard, 932 F.2d at 509. A party may respond to another party's objections within ten days of being served with a copy of those objections. Fed.R.Civ.P. 72(b)(2).