United States District Court, M.D. Tennessee, Nashville Division
H SHARP CHIEF UNITED STATES DISTRICT JUDGE.
Howard, a federal prisoner presently housed at the Federal
Correctional Institution in Manchester,
Kentucky brings this pro se action
pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct an allegedly illegal sentence imposed by this court
on September 17, 2012. (Docket No. 1). For the reasons set
forth herein, the court finds that, with regard to
Howard's ineffective assistance of counsel claim, an
evidentiary hearing is required to resolve the question of
whether Howard did or did not expressly direct his counsel to
file a notice of appeal after entry of judgment. The court
further finds that Howard's motion as to his Due Process
claim will be denied.
January 2011, Howard was indicted of conspiracy to distribute
and possess with intent to distribute controlled substances,
including 500 grams or more of cocaine and 280 grams or more
of crack cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 846. (Case No. 3:11-cr-00012, Docket No.
202)(Wiseman, J.). Howard entered a plea of guilty on
September 4, 2012. (Id., Docket No. 1200).
same day, the court sentenced Howard to 130 months'
imprisonment. (Id.) The court noted that, in his
plea agreement, Howard waived his rights to appeal except in
limited circumstances. (Id., Docket No. 1913 at pp.
five months later, on February 19, 2013, Howard filed a
pro se Notice of Appeal. (Id., Docket No.
1351). The United States Court of Appeals for the Sixth
Circuit dismissed the appeal as untimely. (Id.,
Docket No. 1362). Howard filed his present motion under
§ 2255 on March 27, 2013. (Docket No. 1).
The Current Motion
Howard asserts a claim of ineffective assistance of counsel.
Specifically, Howard contends that his counsel was
ineffective because, although Howard specifically told his
counsel after the sentence was imposed (Docket No. 5 at p. 3)
that he wanted to appeal his plea and sentence, his attorney
failed to file a notice of appeal. (Docket No. 1 at p. 3).
Howard's motion was signed under penalty of perjury,
attesting that he instructed his attorney that he wanted to
file a notice of appeal. (Id. at p. 6).
after the motion was filed, the court conducted a preliminary
examination thereof and determined that the motion stated a
colorable claim for relief. (Docket No. 13). The court
entered an order directing the government to answer, plead or
otherwise respond. (Id.) After seeking and receiving
extensions of time within which to respond, the government
has now filed its response along with an affidavit from
Howard's former counsel, Thomas Drake. (Docket No. 28).
affidavit, Drake states that he does not remember Howard
asking him to file an appeal. (Docket No. 28-1 at p. 3). He
states that if Howard had asked him to file an appeal, he
would have, and he would have filed an “Anders”
brief since Howard had waived his right to file an appeal.
(Id.at p. 4).
Howard claims that his Due Process rights were violated
because defense counsel did not file a sentencing memorandum
or otherwise advocate for a lower sentence than the agreed
130 month sentence under Federal Rule of Criminal Procedure
11(c)(1)(C) in this case. (Docket No. 1 at p. 4).
government, in response, contends that Howard's position
is “completely nonsensical” because Howard
requested immediate sentencing and, under those
circumstances, defense counsel would not have been able to
file a sentencing memorandum as Howard insists should have
occurred. As the government explains, “[i]n
petitioner's scenario, defense counsel would have been
asking the Court to accept the plea and plea agreement, and
then immediately asking the Court to reject that same plea
agreement. Such conduct would not have inured to the
petitioner's benefit.” (Docket No. 28 at p. 2 n.2).
28 U.S.C. § 2255 Standard
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, the court was
without jurisdiction to impose such sentence, the sentence
was in excess of the maximum authorized by law, or the
sentence is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion, a movant
“must demonstrate the existence of an error of
constitutional magnitude which had a substantial and
injurious effect or influence on the guilty plea or the