Opinion
File No. 1:04-CV-377.
March 21, 2005
OPINION
This matter is before the Court on Movant Kerry Lane Richards' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
On February 14, 2003, pursuant to a plea agreement, Movant entered a plea of guilty to possession with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(viii). See United States v. Richards, Case No. 1:02-CR-281, Docket #14 (W.D. Mich. 2002). On June 13, 2003, Movant was sentenced by the Court to 192 months in prison and five years supervised release. Movant did not pursue a direct appeal to the Sixth Circuit Court of Appeals. Movant did, however, timely file the current § 2255 motion.
Movant filed a second § 2255 motion alleging a claim based upon Blakely v. Washington, 124 S. Ct. 2531 (2004). The Court granted Respondent's motion to consolidate the two motions under Case No. 1:04-CV-377. See Richards v. United States, Case No. 1:04-CV-475, Docket #8 (W.D. Mich. Sept. 24, 2004).
I.
In the present motion, Movant raises two claims for relief. First, Movant alleges that he received ineffective assistance of counsel because his defense counsel failed to file an appeal according to Movant's wishes. Second, Movant alleges that he was sentenced in violation of Blakely. The Court will first address Movant's Blakely/ Booker claim.Because Movant was sentenced more than one year before Blakely was decided (June 13, 2003), whether Movant may rely on Blakely and Booker depends on the retroactive effect on collateral review of these cases. The Sixth Circuit has ruled that Booker does not apply retroactively to cases on collateral review. Humphress v. United States, No. 03-5951, 2005 WL 433191 (6th Cir. Feb. 25, 2005). This is consistent with the holdings of every circuit court that has considered the issue. See United States v. Price, No. 04-7058, 2005 WL 535361 (10th Cir. Mar. 8, 2005); Varela v. United States, 2005 WL 367095 (11th Cir. Feb. 17, 2005); McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005). See also In re Dean, 375 F.3d 1287 (11th Cir. 2004) (noting that the Supreme Court strongly implied in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), that Blakely is not to be applied retroactively). Accordingly, Movant cannot obtain relief based upon Blakely or Booker on collateral review.
Movant's other claim for relief is that his right to effective assistance of counsel was violated. In support of his claim, Movant submitted an affidavit in which he states that at the conclusion of his sentencing hearing he told his counsel to file a notice of appeal. According to Movant, his counsel informed him that an appeal would not be necessary because the Government would file a Rule 35 motion based on his substantial assistance. Movant then asserts that he insisted that an appeal be taken. Finally, Movant states that his counsel agreed to file an appeal but failed to do so. In response, the Government has submitted the affidavit of Peter J. Johnson, Movant's defense counsel during the criminal proceeding. Johnson's affidavit directly contradicts Movant's affidavit. While Johnson admits that he told Movant that the Government might file a Rule 35 motion, he expressly denies that Movant instructed him to file an appeal and denies that he agreed to file an appeal on Movant's behalf.
"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). In Flores-Ortega, the Supreme Court applied Strickland v. Washington, 466 U.S. 668 (1984), to claims that counsel was ineffective for failing to file a notice of appeal and addressed the issue of whether counsel was deficient "for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or the other." Id. The Court outlined the inquiry necessary to determine whether counsel was deficient where defendant neither requests that an appeal be taken nor asks that an appeal not be pursued. Id. at 478. In such a case, the district court must first determine "whether counsel in fact consulted with the defendant about an appeal." Id. at 478. That is, did counsel advise the defendant about the advantages and disadvantages of an appeal, "making a reasonable effort to discover the defendant's wishes." Id. If counsel did consult with the defendant then his performance was deficient only if he did not follow the defendant's express wishes.
If counsel, however, did not consult with the defendant, the district court must determine if counsel's failure to do so constitutes deficient performance. Id. This inquiry requires the district court to determine if counsel had an obligation to consult with the defendant regarding an appeal. "Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal . . . or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. Finally, the Supreme Court also held that prejudice is shown in the above circumstances if a defendant demonstrates that "there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484.
Applying these principles to the instant case, the Court is unable to determine the validity of Movant's claim based solely on the current record before it. Accordingly, it is necessary to conduct an evidentiary hearing. See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) ("An evidentiary hearing is required unless `the record conclusively shows that the petitioner is entitled to no relief.'") (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)). At present, the Court is unable to determine whether Movant in fact requested that a notice of appeal be filed and whether Johnson disregarded this request. Further, assuming that Movant did not unequivocally ask for an appeal, the Flores-Ortega analysis requires that the Court determine if counsel consulted with his client. 528 U.S. at 478. The Court is unable to make even this initial determination based upon the conflicting affidavits submitted by the parties. Moreover, the Court is unable to apply any of the other aspects of the Flores-Ortega analysis. Therefore, the Court will require that a hearing take place regarding the ineffective assistance of counsel issue, with particular attention to the analytical framework set forth in Flores-Ortega.
Finally, on February 7, 2005, Movant filed a purported "amended motion to said 2255 Motion" apparently attempting to assert an additional ground for relief. Movant alleges that the Government breached his plea agreement by failing to file a motion for downward departure based upon substantial assistance pursuant to U.S.S.G. 5K1.1 and FED. R. CRIM. P. 35. This claim is meritless and therefore Movant's request to amend his § 2255 is denied. Movant's plea agreement contained the following paragraph:
7. Advisory Paragraph Relative to the Legal Possibility of Substantial Assistance Motions. The Defendant is fully aware of the legal possibilities for sentence reductions contained in USSG § 5K1.1 and Federal Rule of Criminal Procedure 35(b). The Defendant fully understands that such motions for sentence reductions may be made, pursuant to law, if, and only if, the Defendant fully cooperates with the Government and materially and substantially assists the Government in the investigation and prosecution of others. The Defendant fully understands that the Government makes no promise to file either such motion; but, rather, will evaluate the Defendant's assistance to the Government in the prosecution of others to determine whether or not such a motion should be filed in the Government's opinion. The Government retains complete discretion with regard to it's decision as to whether or not to file any such motion. Additionally, the Defendant understands that, even if such a motion is filed, the Court has complete discretion to grant or deny such a motion. . . . This paragraph is merely advisory to the Defendant, is not part of any bargained for exchange, and gives the Defendant no legal or contractual rights of any kind to any motion for a sentence reduction.Richards, Case No. 1:02-CR-281, Docket #14 (emphasis added). Movant misconstrues the effect of this clause. As it clearly states, the Government did not promise to move for a downward departure, but only committed to evaluate Movant's assistance and determine if a reduction was proper. Further, the clause unequivocally states that the possibility of a downward departure for substantial assistance was not part of the bargain entered into under the plea agreement and did not entitle Movant to any such reduction. "Plea agreements are contractual in nature. In interpreting and enforcing them, we are to use traditional principles of contract law." Smith v. Stegall, 385 F.3d 993, 999 (6th Cir. 2004) (quoting United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991)). Under the plain language of the plea agreement, a downward departure based upon substantial assistance was not part of the plea bargain. Moreover, where the plea agreement grants the Government "complete discretion" to determine whether to file a motion for downward departure and there is no allegation of an unconstitutional motive on the part of the Government, "no court is able to review the government's refusal to file a motion for downward departure." United States v. Hawkins, 274 F.3d 420, 428 (6th Cir. 2001). Therefore, Movant's claim is meritless and an amendment of his § 2255 to add such a claim would be futile. Accordingly, Movant's request to amend his original § 2255 is denied.