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Rivers v. United States

United States District Court, M.D. Tennessee, Nashville Division

May 2, 2017



          Marvin E. Aspen United States District Judge.

         Presently before us is Petitioner Sterling R. Rivers' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Rivers asserts he received ineffective assistance of counsel during the sentencing phase of his underlying criminal case. Rivers first alleges his appointed counsel, Jeffery S. Frensley, failed to file a notice of appeal after he was instructed by Rivers to do so. Second, Rivers alleges that based on deficient advice from his appointed counsel, he involuntarily entered into a sentencing agreement that included an appeal waiver.

         We held an evidentiary hearing on Rivers' claims on March 27, 2017. Rivers and Frensley both testified at the hearing. Rivers also presented the testimony of his private investigator, Clata Renee Brewer, who he alleged was present at a meeting with Rivers and Frensley during which Frensley allegedly gave Rivers flawed advice regarding his likely sentence and chances of success on appeal. Counsel was appointed to represent Rivers at the hearing pursuant to Rule 8(c) of the Rules Governing § 2255 Proceedings for the United States District Courts. Based on the evidence presented at the hearing, the arguments of counsel, and the parties' briefs, we make the following findings of fact and conclusions of law.


         A. Procedural Background

         Rivers' motion seeks to invalidate the sentence imposed after his conviction for various crimes related to his participation in a drug trafficking conspiracy. (See M.D. Tenn. Case No. 11 CR 194-13 (“Crim. Dkt.”).) In the underlying criminal case, Rivers was named in a 17-defendant indictment in 2011. The Court appointed counsel to represent Rivers, but after four attorneys withdrew, Rivers sought leave to proceed to trial pro se. (See Crim. Dkt. Nos. 592, 603.) The Court reserved ruling on Rivers' motion and ordered a competency evaluation. (Crim. Dkt. No. 619.) On December 28, 2012, following a competency report and a hearing, the Court found Rivers competent to stand trial, granted his motion to represent himself at trial, and appointed standby counsel to assist him. (Id.) The same day, Frensley filed notice of appearance as standby counsel on Rivers' behalf. (Crim. Dkt. No. 1015.)

         After a ten-day trial, the jury returned a verdict on September 10, 2013. Rivers was convicted on seven counts, including conspiracy to distribute and possession with intent to distribute crack cocaine and cocaine; possession of a firearm with an obliterated serial number; and sale of a firearm to a convicted felon. (Crim. Dkt. No. 1755.) The jury found Rivers not guilty on four counts, and they could not reach a verdict on one count, which the government later dismissed. (Crim. Dkt. No. 1612.)

         Frensley continued to serve in his capacity as Rivers' standby counsel following trial, including attending Rivers' presentence interview. The initial presentence report was completed on November 19, 2013. Frensley met with Rivers in person to review the report in detail. Frensley also helped Rivers draft anticipated objections to the report. After reviewing the objections Frensley prepared, Rivers authorized Frensley to engage in negotiations with the government to potentially reach a sentencing agreement. At that time, Rivers also asked Frensley to act on his behalf as his attorney from that point forward.[1]

         Frensley negotiated extensively with the government to reach a sentencing agreement. Frensley and Rivers met at least 13 times between November 2013 and the sentencing hearing on January 28, 2014 to discuss sentencing issues, including the presentence report, the sentencing agreement and its terms, and the negotiations with the government.[2] The parties eventually executed an Agreement Related to Sentencing and Waiver of Rights (the “Agreement”) on January 16, 2014. (Crim. Dkt. No. 1754 (filed under seal).)

         The Agreement incorporated and agreed to the guideline computations set forth in the revised presentence report. (Id. ¶ 7.) The revised presentence report calculated a Total Offense Level of 43 and Criminal History Category III, resulting in a guideline range of life imprisonment. (Id.) However, the Agreement provided that it was the intent of the parties that the Agreement should be treated in the same manner as an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), “[t]hat is, the parties have agreed, giving consideration to the facts and circumstances of the case and the factors set forth in 18 U.S.C. § 3553(a), that the sentence imposed by the Court shall include a term of imprisonment of 336 months (28 years) in the custody of the Bureau of Prisons.” (Id. ¶ 8.) In addition, Paragraph 12 of the Agreement, titled “Waiver of Appellate Rights, ” stated:

Pursuant to this agreement, and in exchange for the government's sentencing recommendation contained herein, the defendant hereby waives all rights to appeal, except for those expressly maintained below. The defendant also waives all rights to file any post-trial motions, including but not limited to a motion for new trial or motion for judgment of acquittal. Defendant also waives the right to challenge his conviction and the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c). However, no waiver of the right to appeal, or to challenge the adjudication of guilt or the sentence imposed in any collateral attack, shall apply to a claim of involuntariness, prosecutorial misconduct, or ineffective assistance of counsel. Likewise, the government waives the right to appeal any sentence imposed in accordance with this agreement.

(Id. ¶ 12.) The Agreement also provided that Rivers separately entered into a settlement and agreed to dismiss two related pending civil actions he was litigating against the government. (Id. ¶ 9.)

         In advance of the January 28, 2014 sentencing hearing, Frensley filed a sentencing position and the Agreement under seal. (Crim. Dkt. Nos. 1743, 1743-1 (filed under seal).) In response, the government filed its sentencing position stating the “United States concurs with the analysis set forth in Docket Entry No. 1743, and in light of the terms of the sentencing agreement set forth in Docket Entry No. 1743-1, a sentence of 336 months (28 years) in the custody of the Bureau of Prisons is sufficient, but not greater punishment than necessary.” (Crim. Dkt. No. 1750.) During the sentencing hearing, the parties again signed and dated the Agreement, and the Court reviewed it “with Mr. Rivers under oath to make sure he understands it and that he wants to agree to it.” (Sentencing Hrg. Tr. at 11.) Before Rivers was sworn in at the sentencing hearing, the Court explained:

Mr. Rivers, before the Court can accept this agreement, it has to be determined that it's being done knowingly, intelligently and voluntarily. In order to do that, I need to ask you some questions, and I will be going over the agreement with you to make sure you understand it. The questions will need to be under oath. It's very important that you tell the truth. If you don't tell the truth, you could be prosecuted for perjury or false statement.

(Id. at 13.) The Court reviewed and read each paragraph in the Agreement, and Rivers testified under oath that he understood each paragraph and had no questions. (Id. at 13-20.) Rivers also testified that he was acting voluntarily, he was not forced to enter into the Agreement, and he was not “pressure[d] . . . in any way” to sign it. (Id. at 20-21.) The Court accepted the Agreement and found Rivers understood its consequences and “offered to enter into it knowingly, intelligently, and voluntarily.” (Id. at 21-22.)

         Rivers was sentenced according to the terms of the Agreement to a total of 28 years imprisonment. (Crim. Dkt. Nos. 1753, 1755.) Rivers was advised during the sentencing hearing of his right to file an appeal notwithstanding the Agreement's appellate waiver:

I need to inform you about your right to appeal. I'm going to ask the Court Officer to share this notice of appeal form with you. Mr. Rivers, you have 14 days to file a notice of appeal. If you are unable to pay the cost of an appeal, you can apply to appeal as a pauper. If you so request, the Clerk of the Court will file a notice of appeal on your [behalf]. If you direct your lawyer in clear terms to file a notice of appeal, he will file one. And again, you can apply to appeal as a pauper if you cannot afford it. Having said all of that, your agreement relating to sentencing at Paragraph 12 waives certain rights to appeal. This type of waiver is generally enforceable, but if you believe somehow it's not enforceable, you can present that to the Court of Appeals for its consideration.
So again, the bottom line is 14 days to appeal. And you can apply to appeal as a pauper. You can use that form if you want, but you should use it with the advice of counsel.

(Sentencing Hrg. Tr. at 40-41.)

         B. Rivers' § 2255 Motion

         Rivers filed the instant § 2255 motion on February 3, 2015. In support of his motion, Rivers submitted his own affidavit attesting to his recollection of the events at issue. (Jan. 28, 2015 Rivers Aff. (Dkt. Nos. 1-1, 42-1).) He also presented the affidavit of his private investigator. (Sept. 18, 2014 Brewer Aff. (Dkt. Nos. 1-1, 42-2).) The government opposed the motion, and filed the affidavit of Frensley in support. (Mar. 4, 2015 Frensley Aff. (Dkt. Nos. 13-1, 41-1).) On March 27, 2017, we held an evidentiary hearing on Rivers' claims. Prior to the hearing, the parties submitted direct testimony declarations and supplements thereto, along with a pretrial order and supplemental pretrial order that included a statement of the facts and legal issues to be decided. (Dkt. Nos. 41-43, 45-47.) Rivers, Brewer, and Frensley were presented for live cross examination and rebuttal testimony at the evidentiary hearing. In addition, Rivers submitted a supplemental brief in support of his motion on April 4, 2017. (Dkt. No. 50.) The government responded on April 11, 2017. (Dkt. No. 52.) Although permitted to do so, Rivers elected not to file a supplemental reply brief. (See Dkt. No. 49.)

         1. Rivers Affidavit and Evidentiary Hearing Testimony

         Rivers' affidavit states that on September 19, 2013, he met with Frensley at Robertson County Detention Facility, [3] and Frensley presented him with a sentencing agreement offered by the government.[4] (Rivers Aff. ¶ 2.) Rivers attested that Frensley told him that “the government would agree to capping [his] future federal sentence to 336 months of imprisonment, ” and in exchange, Rivers would need to “drop” the civil lawsuits and “waive [his] statutory appellate and habeas corpus rights, except in limited circumstances.” (Id.) Rivers “told Mr. Frensley that I wanted to appeal my conviction and sentence because I had went through the long process of exercising my rights to a jury trial.” (Id.) Rivers' affidavit also states “[r]ight after sentencing, I told Mr. Frensley that I wanted him to file a notice of appeal. Mr. Frensley asked me was I sure. I told him I was sure and to please file the notice because 28 years was too long in prison.” (Id. ¶ 3.)

         Rivers also swore that during the same meeting, Frensley told him that he would lose on appeal. (Id. ¶ 2.) When Rivers asked “how he could know that without research and going through the process of reviewing appeal issues, ” Rivers claims Frensley told him “the appellate judges were ‘old white men' who would not go against another white judge for a young black man” and “that is just how it is.” (Id.) According to Rivers, Frensley also said he would get a life sentence if he didn't accept the sentencing agreement. (Id.) Rivers alleges that Brewer was present for part of the meeting with Frensley. (Id.) She questioned and objected to the sentencing agreement offer and made it clear that she thought it was a bad idea. (Id.) Rivers claims Frensley “reasserted and stressed” that Rivers would “almost certainly” receive a life sentence and lose on appeal “because the white appellate judges would not rule in [Rivers'] favor simply because [he] was black and the district judge was white.” (Id.) Rivers alleged that “[w]ithout this advice from Mr. Frensley I would have not accepted the sentencing agreement and waived my rights to appeal my case or drop my lawsuit.” (Id.)

         At the March 27, 2017 evidentiary hearing, Rivers testified under oath. He agreed that he had vigorously defended himself, including filing dozens of pleadings on his own behalf while he was representing himself before, during, and after trial. Rivers understood before signing the Agreement that he could receive a maximum penalty of life imprisonment, and he affirmed that he agreed to a term of imprisonment of 28 years at least in part to avoid the risk of receiving a life sentence. Rivers nevertheless maintained his claim that he only entered into the Agreement because Frensley told him he would lose on appeal because the appellate judges and the district court judge were white and Rivers was black.

         However, Rivers also conceded that despite performing research and filing numerous pleadings throughout the pretrial and trial proceedings, he did no research to determine whether Frensley's advice was accurate. He claimed he took Frensley at his word, trusted the advice of his attorney, did not believe he received bad advice at the time, and did not know how to do proper research himself even if he wanted to. He admitted that although he went through four attorneys leading up to trial and did not take their advice, he believed what Frensley told him without question. Rivers also testified that Frensley's advice allegedly “broke his spirit” and caused him to sign the Agreement. Under this version of ...

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