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Bolton v. United States

United States District Court, E.D. Tennessee

June 14, 2018

LARA BOLTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         The Petitioner, Lara Bolton (“Bolton”), entered a guilty plea before the undersigned to one count of drug trafficking (crack cocaine) [Doc. 162].[1] This plea was entered pursuant to a plea agreement [Doc. 155]. The Court sentenced Bolton to 126 months' imprisonment [Docs. 545, 546]. Bolton did not file an appeal.

         Before the Court now is Petitioner's pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Docs. 735, 785]. The Government has filed a response in opposition [Doc. 847].

         I. Petitioner's § 2255 Motion

         To obtain relief pursuant to 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998). Petitioner presents several claims in her § 2255 motion: that her counsel was constitutionally ineffective for not filing a direct appeal; for not objecting to the sufficiency of the indictment; for not sharing discovery with her; for not objecting to a § 851 enhancement; for not explaining the plea agreement; for not investigating whether her prior felonies were misdemeanors; and for errors at sentencing.

         II. Ineffective Assistance of Counsel

         A petitioner alleging ineffective assistance of counsel must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). See also Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). First, the petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide “reasonably effective assistance, ” id., as measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound . . . strategy”) (internal citation omitted).

         Second, the petitioner must demonstrate “a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that she sustained prejudice, the Court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged “flaws” in trial counsel's representation did not warrant new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).

         The Court finds that the Petitioner has the burden to establish that she is entitled to relief. See Bevil v. United States, No. 2:06-cr-52, 2010 WL 3239276, at *3 (E.D. Tenn. Aug. 16, 2010) (recognizing the “burden of proving ineffective assistance of counsel is on the petitioner”); Douglas v. United States, No. 2:05-cr-07, 2009 WL 2043882, at *3 (E.D. Tenn. July 2, 2009) (stating that “[w]hen a defendant files a § 2255 motion, he must set forth facts which entitle him to relief”).

         A. The determination of whether counsel was ineffective in failing to file a direct appeal requires a hearing

         Bolton claims that she told her attorney that she wanted to file an appeal “immediately after sentencing, ” but that no appeal was filed, although the appeal filing deadline did not expire for ten days thereafter. Bolton alleges that her attorney told her that she “could not file an appeal.” The Government argues that Petitioner's assertion is too vague and unsubstantiated, and that she has not alleged that she “expressly requested an appeal.” The Government also says that Bolton waived her right to file an appeal as part of her plea agreement.

         The law controlling in the Sixth Circuit is clear:

Despite the waiver [of appeal rights in a plea agreement] if counsel had ignored the defendant's express instruction to file an appeal, such action “amounts to a per se violation of the Sixth Amendment, and thus regardless of the merits of [defendant's] substantive claims” he would be entitled to relief under § 2255, if the district court determined on remand that there was an “actual request for an appeal.”

Campbell v. United States, 686 F.3d 353, 359 (6th Cir. 2012); see also Pola v. UnitedStates, 778 F.3d 525, ...


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