United States District Court, E.D. Tennessee, Greeneville Division
Jordan United States District Judge.
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
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].
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.”
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].
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.
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].
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].
Standard of Review
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.
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.
Owenby's § 2255 Claims for Relief
§ 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” [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].
Claim One - Ineffective assistance of counsel for failure to
file a direct appeal.
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.
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.
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 ...