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Avery Green v. United States of America

January 17, 2013

AVERY GREEN
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Judge Curtis L. Collier

MEMORANDUM

In this post conviction action, Avery Green ("Green") seeks to have his federal sentence*fn1 vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255 (Criminal Court File Nos. 42, 43).*fn2

Green raises six claims--three ineffective assistance of counsel claims, two due process claims, and one claim relating to the Fair Sentencing Act of 2010 (Criminal Court File No. 43). The government filed its response (Criminal Court File No. 55), and the Court concluded, that before ruling on the § 2255 motion, an evidentiary hearing was required on Green's claim that defense counsel failed to perfect a direct appeal pursuant to his instruction for her to do so. Counsel was appointed to represent Green during the evidentiary hearing on this claim. The Court conducted the evidentiary hearing on October 10, 2012, and the case is now ripe for review.*fn3

The motion, together with the files and record in this case, and the evidence presented at the evidentiary hearing, conclusively show Green, who has the burden of proof on his claims, fails to satisfy his required burden and therefore his § 2255 must be DENIED (Criminal Court File No. 42).

I. NON-DISPOSITIVE MOTION

Green filed a motion to amend his § 2255 pleading to add a claim that this Court relied upon inaccurate information regarding the drug quantity attributed to him (Criminal Court File No. 51). Green's judgment of conviction was filed on April 19, 2010, and became final fourteen days later, on May 3, 2010, because no direct appeal was filed (Criminal Court File No. 38). Therefore, Green's one year statute of limitation for filing a timely § 2255 motion expired on May 3, 2011. Green's motion to amend was filed on August 17, 2011, a little more than three months after his one year statute of limitations had expired (Criminal Court File No. 51). Accordingly, Green's proposed amendment to his § 2255 motion is untimely because it was filed more than one year after his judgment of conviction became final and, as explained below, it does not relate back to his timely filed § 2255 motion. See Howard v. United States, 533 F.3d 472, 475-76 (6th Cir. 2008) (noting that a motion to amend will be denied where it is filed after the expiration of the statute of limitations unless it relates back to the date of he original pleading).

Rule 15 states that an amendment may "relate back" to the date of the original pleading if the proposed claim "arose out of the conduct, transaction, or occurrence set forth in the original pleading. Fed.R.Civ.P. 15(c)(2). Green's original § 2255 motion alleged this Court relied on inaccurate information regarding the number of qualifying predicate offenses for his career-offender classification, and in his motion to amend, he alleges the Court relied on inaccurate information regarding the drug quantity attributed to him (Criminal Court File No. 51). The basis for Green's new inaccurate-drug-quantity claim is different than his timely inaccurate-qualifying-predicate-convictions claim. Because Green's new inaccurate-quantity-of-drugs claim does not share a "common core of operative facts" with his timely claim of inaccurate-qualifying-predicate-convictions, and because nothing in the record reflects this is a situation where equitable tolling should apply, his motion to amend will be DENIED as untimely (Criminal Court File No. 51).

II. BACKGROUND

A. Underlying Criminal Conviction

Green was indicted on May 27, 2009, and charged with six counts of distributing a mixture and substance containing a detectable amount of cocaine base, or "crack" in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Criminal Court File No. 3). On June 12, 2009, the government filed an information under 21 U.S.C. § 851, notifying Green that upon conviction for an offense contained in the indictment, his sentence would be increased based on his prior felony drug convictions (Criminal Court File No. 11). Although counsel had been appointed to represent Green, counsel soon was replaced by a retained attorney, Michelle M. Benjamin, who represented him thereafter (Criminal Court File No. 20, Order of Substitution).

On December 9, 2009, Green pleaded guilty to Count Four of the indictment charging him with knowingly, intentionally, and without authority distributing 5 grams or more of a mixture and substance containing a detectable amount of cocaine base or "crack." The Presentence Report ("PSR) reflects Green had a total offense level of 34 and a criminal history category of VI. In addition, he qualified as a career offender pursuant to United State Sentencing Guidelines (USSG) § 4B1.1(b), which also resulted in a criminal history category of VI. Thus, Green's guidelines were 262 to 327 months.

On April 8, 2010, the Court sentenced Green below his guideline range to 240 months (Criminal Court File No. 35). Because Green was not asked to admit or deny his prior convictions that were used to enhance his sentence, Green's sentencing hearing recommenced on April 15, 2010, at which time the Court corrected the oversight and resentenced him to 240 months imprisonment (Criminal Court File No. 37). On February 16, 2011, Green filed this timely pro se § 2255 motion raising, inter alia, a claim that counsel failed to file a direct appeal as directed and requesting the Court to restore his appellate rights.

B. Procedural Background of § 2255 Motion

Following initial consideration of Green's timely filed § 2255 motion, as required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Government was directed to file a response (Criminal Court File No. 42). The government's response did not resolve Green's claim he made a specific request of his counsel to file an appeal after the initial sentencing hearing and confirmed with her after his re-sentencing that she was still going to file an appeal. Therefore, because resolution of the claim in Green's favor would have resulted in permitting him to file a delayed direct appeal, thus rendering resolution of the other claims unnecessary, the Court scheduled an evidentiary hearing on the sole claim that defense counsel provided ineffective assistance by failing to follow his instruction to file a notice of appeal.

The evidentiary hearing was held on October 10, 2012. At the conclusion of the evidentiary hearing, Green's counsel waived filing a post-hearing brief, and instead, made a closing argument. The government waived both a closing argument and filing a post-hearing brief.

After reviewing the record, the applicable law, and the evidence presented at the hearing, the Court concludes, as explained below, Green has not satisfied his burden of proof on any of his claims, and the § 2255 motion will be DENIED in its entirety (Criminal Court File No. 42).

III. ANALYSIS

Green raises six claims: (1) Counsel was ineffective for failing to file a notice of appeal as directed; (2) Counsel was constitutionally ineffective at sentencing in three instances; (3) Green was denied due process when the Court allegedly failed to explain its sentencing decision; (4) Counsel was ineffective for failing to object to the Court's treatment of the Federal Sentencing Guidelines as reasonable;*fn4 (5) Green was denied due process when the Court relied on the government's inaccurate claim that Green had three qualifying convictions to meet the career criminal status to which counsel failed to object (Criminal Court File No. 42), and (6) the Fair Sentencing Act of 2010 should be applied to his sentence (Criminal Court File No. 43). The Court will address the ineffective assistance of counsel claims raised in Green's § 2255 motion first, before turning to the due process and application of the Fair Sentencing Act of 2010 claims.

In this § 2255 proceeding, Green has the burden of establishing his claims by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). The Court will address the ineffective assistance of counsel claims separately, after discussing the applicable law.

A. Ineffective Assistance of Counsel Claims--Applicable Law

The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984), established the criteria for determining whether a Sixth Amendment claim of ineffective assistance of counsel is meritorious. The Strickland test requires a defendant to demonstrate two essential elements: (1) counsel's performance was deficient, i.e., below the standard of competence demanded of attorneys in criminal cases; and (2) counsel's deficient performance prejudiced the defense, i.e. deprived the defendant of a fair trial rendering the outcome of the trial unreliable. Id. at 687-88; see also Flippins v. United States, 808 F.2d 16, 17-18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987).

The standard by which a court reviews counsel's performance is highly deferential, and there is a strong presumption counsel's conduct was within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Sims v. Livesay, 970 F.2d 1575, 1579-80 (6th Cir. 1992). "[R]eviewing court[s] must remember that 'counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Wong v. Money, 142 F.3d 313, 319 (6th Cir.1998), (quoting Strickland v. Washington, 466 U.S. at 690.) "An error of counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate] judgment." Id. at 691.

Where a Sixth Amendment claim of ineffective assistance of counsel is made in a § 2255 proceeding in the context of a guilty plea, the prejudice prong of the Strickland test is adjusted. Therefore, a defendant is required to allege and show there is a reasonable probability that, but for counsel's errors and deficient performance, he would not have pleaded guilty, and he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) ("[I]n order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." ). To demonstrate a reasonable probability that a defendant would have gone to trial requires evidence--apart from a lone assertion--that, absent counsel's error, he would have done so. See Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.1995) ("A defendant alleging ineffective assistance of counsel in the guilty plea context must make more than a bare allegation that but for counsel's error he would have pleaded not guilty and gone to trial."), cert. denied, 516 U.S. 1058 (1996).

The two-prong Strickland standard does not apply to a claim that counsel failed to follow a specific request to file a direct appeal. Rather, a defendant who proves an attorney failed to follow a specific request to file a direct appeal, demonstrates, per se, counsel was ineffective. Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) ("[T]he failure to perfect a direct appeal, in derogation of a defendant's actual request, is a per se violation of the Sixth Amendment").

1. Failure to File an Appeal

Green claims counsel ineffectively failed to appeal his sentence as directed. Counsel contends Green never directed her to file an appeal. Therefore, the issue before the Court is whether Green has proven, by a preponderance of the evidence, that he directed counsel to file an appeal.

As previously stated, an attorney who fails to file an appeal on behalf of a client who specifically requests it, per se, acts in a professionally unreasonable manner. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable"); Ludwig v. United States, 162 F.3d at 459. Therefore, such an omission, if proven, is constitutionally deficient performance as a matter of law. Id. ("When counsel fails to file a requested appeal, a defendant is entitled to a new appeal without showing that his appeal would like have had merit") (citations and internal punctuation omitted).

a. Green's Evidentiary Hearing Testimony

Green, the first witness to testify at his evidentiary hearing, testified he instructed Ms. Benjamin to file an appeal after the April 8, 2010, sentencing hearing because, in his opinion, he received too much time (240 months)--he expected a 10-year sentence since he proffered to the government. Green also stated that counsel had told him his guideline range would be 10 years to life (this was actually the statutory range) but his United States Sentencing Guidelines ("USSG") range was 262 to 327 months.*fn5 Green further explained that counsel said she expected him to get around 12, 13, or 14 years because he assisted the government (Criminal Court File No. 66, p. 8).*fn6

According to Green, after his April 8, 2010, sentencing hearing, Ms. Benjamin told him to write a list of issues he wished to appeal and she would come by the jail to discuss it with him. Ms. Benjamin never made it to the jail and there is no evidence Green ever mailed her the list of issues he wished to appeal. Green received a letter before the April 15, 2010, hearing from Ms. Benjamin informing him that he would be resentenced on that date (Criminal Court File No. 66, pp. 7-10).

Green testified he asked counsel, after the second sentencing hearing, if she was still going to file his appeal. Green, however, did not elaborate as to the details of the discussion after he requested her to file an appeal. Rather, he testified he went to the jail and waited on her, and then attempted to contact her by phone but to no avail. Green also explained he had his mother call Ms. Benjamin, and when counsel and his mother spoke, counsel explained that Green had no grounds on which to appeal (Criminal Court File No. 66, p. 14).

Green wrote Ms. Benjamin a letter which she received on or about May 4, 2010, wherein he stated "I need you to do 1 more thing for me[.]" (Government Exhibit 1). Green requested Ms. Benjamin to contact "Johnson"*fn7 and give him the detailed information on four people which he provided in the letter. Green explained that he proffered with the government and expected to have his sentence reduced since his proffer sessions resulted in the government making three or four arrests.*fn8 There was no mention of an appeal in the letter.

Green wrote Ms. Benjamin another letter, which she received on June 25, 2010, wherein he requested that she send him some documents from his case so he could file an appeal.*fn9 Green's letter to counsel which she received on July 14, 2010, inquired about the Rule 35 motion, and another letter in August 2010 discussed his cooperation and request that counsel file a Rule 35 motion (Government Exhibit 2). Although Green testified he had written other letters, no evidence was presented to substantiate his claims.

On cross-examination, Green acknowledged he went into the sentencing hearing knowing the bottom of his guideline range was 262 months but since he had cooperated with the government through his proffer, he did not expect to get 262 months or the amount of time that he received i.e., 240 months (Criminal Court File No. 66, p. 23). Green explained that since the statutory sentence was ten years to life and since he proffered to the government, he "figured [he] could get ten." (Criminal Court File No. 66, p. 37, Government Exhibit No. 5).*fn10 Green further explained, I'm stuck with a whole lot of time and I ain't got no choice but to fight. And if it takes to where I got to fight to try to get my sentence, that's - - that's what I got to do. I can't accept 240 months. That's time- - My son is out there growing up by hisself [sic]. Of course I made mistakes in my past. But everybody change, you know. . . .

And for me to get 20 years for my past, for something that's small, like, it's not right. I understand I done been in trouble, but it's not right. And because I done made a mistake, can't nobody say that I can't change.

Before I had a child in my life, it really - - like, I didn't really care, because I really had nothing to live for. Today I got something to strive for. So if I'm not going to get no time off by the - - the agents lying to me and telling me they going to give me time off for a reduction, I got to fight. (Criminal Court File No. 66, pp. 38-40).

b. Flora Bynum's Evidentiary Hearing Testimony

Green's next witness was his mother, Flora Bynum. Ms. Bynum testified she asked Ms. Benjamin if she was going to file an appeal after the April 8, 2010, sentencing hearing, because Green "was given a lot of time." (Criminal Court File No. 66, p. 47). Counsel told Ms. Bynum she would go the jail and talk to Green about it, but counsel never did. Ms. Bynum could not recall whether she had a conversation with Ms. Benjamin about filing an appeal after the April 15, 2010, hearing, although she testified she continued to call counsel's office to see if she was going to file Green's appeal. Ms. Bynum did not know how long between the April 15, 2010, sentencing hearing and the date Ms. Benjamin told her Green had no grounds to file an appeal, but she testified, on cross-examination, such a conversation did take place (Criminal Court File No. 66, p. 49-52, 57).

On cross-examination Ms. Bynum testified she continued to call Ms. Benjamin, checking on whether her son was going to receive any benefit from ...


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