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United States v. Owenby

United States District Court, E.D. Tennessee, Greeneville Division

March 9, 2017



          Leon Jordan United States District Judge.

         Defendant Clayton Carroll Owenby (“Owenby” or “petitioner”) has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 323]. He subsequently filed an amended motion to vacate [Doc. 344]. The United States has responded to the motion, objecting to Owenby's requested relief. [Doc. 333, 382]. The matter is now ripe for the Court's resolution.

         I. BACKGROUND

         On December 11, 2012, Owenby was indicted for a conspiracy to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1). [Case No. 2:12-cr-118, Indictment, Doc. 3]. While incarcerated pending the disposition of that charge, Owenby placed a series of phone calls to his mother, Kathleen Garret, and made numerous threats directed towards the lead investigator involved in the drug trafficking investigation. As a result, another case was filed against him (Case No. 2:13-cr-21), in which he was charged with (1) threatening to cause bodily injury to a witness with the intent to retaliate in violation of 18 U.S.C. § 1513(b)(1); (2) engaging in intimidating and threating conduct against a witness with the intent to influence or prevent the testimony of a witness in violation of 18 U.S.C. § 1512(b)(1), and (3) conspiring to commit such offenses to retaliate in violation of 18 U.S.C. § 371. [Case No. 2:13-cr-21, Doc. 1, Indictment].[1]

         Owenby entered into a plea agreement with the Government, resolving both of these indictments. As part of the plea agreement, Owenby stipulated to the facts necessary to prove each of the offenses to which he pled guilty. Owenby stipulated that he conspired to distribute 176, 240 milligrams of oxycodone, which equated to 1, 180 kilograms of marijuana [Doc. 141, Plea Agreement, pg. 3, 6]. Owenby also stipulated that he made numerous phone calls to his mother, co-defendant, Kathleen Garrett, wherein he threatened to “take out” or “engage in … conduct which would cause bodily injury …” to the T.B.I. Special Agent handling the case. [Doc. 141, Plea Agreement, pg. 6-8]. He admitted that he told Garrett that the TBI Agent “need[s] to be took [sic] care of, you know what I'm saying.” [Doc. 141, Plea Agreement, pg. 7]. He also told her that “if I'm gonna do life in prison, then I'm gonna be all over the f----ing nationwide news for taking these son of bitches out. So you do what you have to do.” Id.

         As part of his plea agreement, Owenby waived filing a direct appeal except for a sentence imposed above the sentencing guideline range as determined by the District Court or “above any mandatory minimum sentence deemed applicable by the district court, whichever is greater” and waived filing any pleadings pursuant to 28 U.S.C. § 2255 except for “claims of ineffective assistance of counsel or prosecutorial misconduct not known to the defendant by the time of the entry of judgment.” [Doc. 141, Plea Agreement, pg. 11].

         On May 21, 2013, the District Court held a change of plea hearing. At that hearing, the District Court asked Owenby if he had ever been treated for any mental illness, to which Owenby answered “about twenty years ago for bipolar.” [Doc. 331, Transcript, pg. 5]. Owenby also advised the Court that he believed that his lawyer was fully aware of all the facts on which the charges were based. [Doc. 331, Transcript, pg. 6-7]. The Assistant U.S. Attorney read into the record the agreed factual basis from the signed plea agreement that supported his plea as to both the conspiracy charge and the obstruction of justice charge. When asked by the District Court whether he agreed with the Government's summary of his conduct, he responded that he did [Doc. 331, Transcript, pg. 15]. Owenby also advised the Court that he understood his direct appeal and his § 2255 waiver contained in the plea agreement. Owenby then pled guilty to both offenses and stated that he was pleading guilty because he was, in fact, guilty of committing both of those offenses. [Doc. 331, Transcript, pg. 15-16]. The Court then found Owenby's change of plea to be knowingly, intelligently, and voluntarily made, and it accepted the plea.

         United States Probation prepared a Presentence Report (“PSR”) detailing Owenby's background including his treatment for mental health issues and his criminal history. (PSR ¶ 79-84). It reported details of his physical condition, such as the multiple medical procedures he had for back pain, including the epidurals and nerve blocks he received. It also reported the numerous ear surgeries he had when he was a child, and it summarized the medical records from his various healthcare providers. (PSR ¶ 80-83). In contrast to the allegations contained in his § 2255 motion, Owenby actually denied suffering from any current mental health issues in his discussion with the U.S. Probation officer. (PSR ¶ 83). Based upon his criminal history and his acceptance of responsibility, Probation calculated his total offense level to be 31, his criminal history as category II, with a corresponding guideline range of 121 to 151 months. Owenby did not object to the contents of the PSR [Doc. 207].

         On September 5, 2013, Owenby's counsel announced to the Court that he had reviewed the PSR with Owenby and that there were no objections [Doc. 332, Transcript, pg. 3-4]. For both the conspiracy to distribute oxycodone charge, (Case No. 2:12-cr-118), and the obstruction of justice charge, (Case No. 2:13-cr-21), the Court sentenced Owenby to a concurrent 135-month term of imprisonment [Doc. 223, Judgment]. The District Court advised Owenby that he had the right to appeal his sentence and that a “notice of appeal must be filed within 14 days of entry of the judgment. If you request, and so desire, the Clerk of the Court can prepare and file the notice of appeal for you.” [Doc. 332, Transcript, pg. 10]. Owenby did not file a direct appeal. Instead, on February 28, 2014, he timely filed his initial § 2255 motion [Doc. 323] and an amended motion on May 5, 2015 [Doc. 334].

         II. ANALYSIS

         A. Standard of Review

         The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right extends beyond the mere presence of counsel to include “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish a claim of ineffective assistance, Owenby must demonstrate two essential elements: (1) that counsel's performance was deficient, that is, below the standard of competence expected of attorneys in criminal cases; and (2) that counsel's deficient performance prejudiced the defense, i.e. deprived the defendant of a fair criminal proceeding, rendering the outcome of the proceeding unreliable. Id. at 687-88.

         With regard to plea proceedings, Owenby must show that but for counsel's deficient performance, he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To demonstrate a reasonable probability that he would have gone to trial, a defendant is required to present evidence apart from a lone assertion that but for counsel's error he would have pleaded not guilty and gone to trial. See Parry v. Rosemeyer, 64 F.3d 110, 118 (3rd Cir. 1995). Under Strickland, review should be deferential and maintain a strong presumption in favor of finding counsel's conduct within the wide permissible range of reasonable professional assistance. Strickland, 466 U.S. at 689.

         B. Owenby's § 2255 Claims for Relief

         In his § 2255 motion, Owenby's claims are confusingly pled and difficult to decipher. As the Court discerns, Owenby raises the following ineffective assistance of counsel claims: (1) counsel failed to file a direct appeal; (2) counsel failed to obtain his mental health records, claiming that he had a “diminished mental capacity, ” “bipolar disorder and multiple personality disorder” and was developmentally disabled, none of which was presented to the District Court, [Doc. 323, Initial Motion, pg. 2; Doc. 334, Amended Motion, pg. 3, 8, 13]; (3) counsel failed to explain the evidence against him; [Doc. 323, Initial Motion, pg. 2]; (4) counsel failed to explain the appellate or §2255 waiver contained in the plea agreement [Doc. 334, Amended Motion, pg. 10]; (5) counsel failed to challenge the drug quantity [Doc. 323, Initial Motion, pg. 3]; (6) “prosecutorial manipulation of the charges” [Doc. 334, Amended Motion, pg. 5, 15]; (7) that his guilty plea “was false because I don't understand so much” [Doc. 334, Amended Motion, pg. 15]; (8) “ineffective [assistance of] counsel - duress or coercion”[2] [Doc. 323, Initial Motion, pg. 6]; (9) pretrial incarceration conditions [Doc. 334, Amended Motion, pg. 17]; and (10) “Minimal role in the offense” [Doc. 334, Amended Motion, , pg. 6].

         1. Claim One - Ineffective assistance of counsel for failure to file a direct appeal.

         Owenby contends in his amended § 2255 motion that his attorney knew he wished to file an appeal, but that his counsel refused to assist him. He claims that his counsel still refused to help after Owenby's wife contacted him. In response to that allegation, the United States contends that Owenby fails to present any evidence that he actually requested his attorney to file an appeal, which counsel then disregarded. Further, it argues, Owenby was clearly aware of the deadline to file his appeal but fails to explain why he never personally contacted the Clerk's Office to request assistance with the filing of any appeal.

         If an attorney fails to file an appeal after being specifically instructed to do so by a defendant, the defendant is entitled to an appeal without regard to a showing that the appeal would actually have merit, that is, without regard to a showing of actual prejudice. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); accord Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). Absent proof that a defendant explicitly directed counsel to file a notice of appeal, a court considers whether the attorney “consulted with [petitioner] about an appeal” and made “a reasonable effort to discover [his] wishes.” Flores-Ortega, 528 U.S. at 478, 487. In this particular case, the United States initially argued that Defendant has failed to allege that he directed his attorney to file an appeal. But Owenby specifically states in his motion that his attorney “knew [he] wanted to file an appeal and that [counsel] was not gonna help [him] do that.” [Doc. 344, pg. 9]. Further, he alleges that his wife called counsel's office concerning the appeal, and that counsel still refused to assist in the appeal.

         Both components of the Strickland test apply where the asserted attorney error is the failure to file an appeal. Flores-Ortega, 528 U.S. at 477. In assessing the claimed error in light of the deficient-performance prong of the Strickland standard, the Supreme Court has instructed:

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. See Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (“[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit”). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot ...

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