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Stoltz v. United States

United States District Court, W.D. Tennessee, Eastern Division

November 16, 2017

TONYA STOLTZ, Petitioner,



         On August 29, 2016, Petitioner, Tonya Stoltz, filed a pro se motion pursuant to 28 U.S.C. § 2255 (“Petition”). (Case Number (“No.”) 16-cv-1237, Docket Entry (“D.E.”) 1.)[1] Respondent, United States of America, filed an amended answer to the Petition, (D.E. 27), and Stoltz filed an amended reply, (D.E. 28). For the reasons that follow, the Court determines that limited expansion of the record with regard to Claim 6 of the Petition is warranted.


         In March 2015, a federal grand jury returned a one-count indictment against Petitioner charging a violation of 21 U.S.C. § 841(a)(1). (No. 15-cr-10013, D.E. 14.) Represented by attorney Robert Thomas, Stoltz appeared before the Court on October 14, 2015, and pled guilty to the single count of the indictment. (Id., D.E. 53.) Pursuant to the plea agreement, Petitioner waived her right to an appeal, except in narrow circumstances. (Id., D.E. 54 at PageID 128-29.)

         The Court conducted a sentencing hearing on March 4, 2016, and sentenced Stoltz to ninety months' incarceration, followed by three years of supervised release. (Id., D.E. 73.) She did not take a direct appeal.

         The inmate timely filed her Petition in August 2016. (D.E. 1.) She asserts that Thomas rendered ineffective assistance in six respects: He failed to adequately investigate her case, resulting in a “coerced” guilty plea (Claim 1); failed to move to suppress her statements to law enforcement (Claim 2); had a conflict of interest (Claim 3); failed to adequately advocate on her behalf at sentencing (Claims 4 and 5); and failed “to advise petitioner in an appeal” (Claim 6). (D.E. 1 at PageID 4-13.)


         Respondent argues that the Petition should be denied because all of Stoltz's claims are without merit. (D.E. 27 at PageID 366-73.) With regard to Claim 6 in particular, the Government asserts that the record in Petitioner's criminal case and Thomas's affidavit establish that counsel did not render ineffective assistance as to an appeal. (Id. at PageID 371-72.) According to the affidavit, Stoltz never asked to appeal her sentence. (Id. at PageID 372 (citing D.E. 27-1 at PageID 376-77).) Petitioner concedes that she never expressly directed counsel to file an appeal, but asserts that he rendered ineffective assistance by failing to consult with her about an appeal after sentencing. (D.E. 1 at PageID 13.)

         An ineffective assistance claim is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed on such a claim, a petitioner must prove two elements: (1) that counsel's performance was deficient and (2) “that the deficient performance prejudiced the defense.” Id.

         In Roe v. Flores-Ortega, the United States Supreme Court announced that Strickland's test applied to claims “that counsel was constitutionally ineffective for failing to file a notice of appeal.” 528 U.S. 470, 477 (2000). The Court held that a federal criminal attorney who fails to file a timely notice of appeal after a request by his client performs deficiently. Id. Moreover, prejudice is presumed, and the defendant need not show that “h[er] appeal would likely have had merit.” Id. (quoting Peguero v. United States, 526 U.S. 23, 28 (1999)). The Court in Flores-Ortega also extended Strickland to cases where “the defendant did not clearly express [her] wishes one way or the other as to whether [she] wanted to file an appeal.” United States v. Lovell, 83 F. App'x 754, 758-59 (6th Cir. 2003) (citing Flores-Ortega, 528 U.S. at 477). In such a circumstance, counsel renders ineffective assistance where he had a duty to consult with the defendant about an appeal but did not did so, and the failure prejudiced the defendant. Flores-Ortega, 428 U.S. at 480-81.

         In addressing a failure-to-consult claim, a court must first determine whether counsel “consulted with the defendant about an appeal.” Lovell, 83 F. App'x at 758 (quoting Flores-Ortega, 428 U.S. at 478). “Consult” means “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes.” Flores-Ortega, 528 U.S. at 478. If the attorney did not consult with the defendant about an appeal, the question becomes whether counsel had an “absolute duty to consult.” Lovell, 83 F. App'x at 758. Such a duty “exists only where (1) a rational defendant would want to appeal, because of, for example, the existence of non-frivolous grounds for appeal, or (2) the defendant in question reasonably demonstrated to counsel that [she] was interested in appealing.” Id. Counsel's “[f]ailure to consult in those circumstances constitutes deficient performance.” Id.

         To determine whether a rational defendant would have wanted to appeal, or whether the defendant reasonably expressed to counsel an interest in appealing, a court must take numerous factors into account, including whether the defendant pled guilty and whether she waived her appeal rights:

Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine ...

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