United States District Court, W.D. Tennessee, Eastern Division
MICHAEL C. FOWLER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING IN FORMA PAUPERIS MOTION, DENYING CLAIM
AND DIRECTING UNITED STATES TO RESPOND TO REMAINING
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
August 30, 2019, Petitioner, Michael C. Fowler, filed a
pro se habeas corpus petition (the
“Petition”), pursuant to 28 U.S.C. § 2255.
(Docket Entry (“D.E.”) 1.) The Petition is
before the Court for preliminary review.
October 3, 2018, Fowler pleaded guilty to one count of
conspiracy to possess with intent to distribute more than
fifty grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a) and 846. (United States v.
Fowler, No. 1:17-cr-10024-JDB-1 (“No.
17-cr-10024”), D.E. 131.) On March 14, 2019, the Court
sentenced him to 151 months' incarceration and five years
of supervised release. (Id., D.E. 164.) A direct
appeal was taken. (Id., D.E. 168.) On September 4,
2019, the Sixth Circuit dismissed the appeal “based on
the appellate-waiver provision in Fowler's plea
agreement.” (Id., D.E. 178 at PageID 590.)
his appeal was pending, Fowler filed his Petition, asserting
four ineffective-assistance-of-counsel claims. He argues that
his attorney should have “ask[ed] for a downward
variance because of [his] mental disability, ” (D.E. 1
at PageID 4 (Claim 1)), failed to argue his
“dysfunctional childhood” at sentencing,
(id. at PageID 5 (Claim 2)),  failed to file a
notice of appeal after Petitioner directed him to do so,
(id. at PageID 7 (Claim 3)), and “rushed [him]
through [his] P.S.I. and final sentencing, ”
(id. at PageID 8 (Claim 4)).
Court has reviewed the record in Petitioner's criminal
case. Because it plainly appears that he is not entitled to
relief on his claim that counsel was ineffective in failing
to file a notice of appeal, Claim 3 must be dismissed.
See Rules Governing Section 2255 Proceedings for the
United States District Courts [hereinafter “Habeas
Rules”], Rule 4(b) (“If it plainly appears from
the [petition], any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the [petition].”).
that an attorney's ineffective assistance has deprived a
criminal defendant of his Sixth Amendment right to counsel is
controlled by the standards stated in Strickland v.
Washington, 466 U.S. 668 (1984). See Robins v.
Fortner, 698 F.3d 317, 329 (6th Cir. 2012). To succeed
on such a claim, a petitioner must demonstrate two elements:
(1) “that counsel's performance was
deficient” and (2) “that the deficient
performance prejudiced the defense.”
Strickland, 466 U.S. at 687. “The benchmark
for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result.” Id. at 686.
establish deficient performance, a petitioner “must
show that counsel's representation fell below an
objective standard of reasonableness.” Id. at
687-88. A court considering a claim of ineffective assistance
must apply “a strong presumption” that the
attorney's representation was “within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal
quotation marks and citation omitted). An attorney's
“strategic choices” are “virtually
unchallengeable” if based on a “thorough
investigation of law and facts relevant to plausible
options.” Id. at 690-91. “[S]trategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable
professional judgments support the limitations on
prejudice, a petitioner must establish “a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. “It is
not enough ‘to show that the errors had some
conceivable effect on the outcome of the
proceeding.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
693). Instead, “[c]ounsel's errors must be
‘so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.'”
Id. (quoting Strickland, 466 U.S. at 687).
Roe v. Flores-Ortega, 528 U.S. 470 (2000), the
United States Supreme Court announced that
Strickland's test applies to claims “that
counsel was constitutionally ineffective for failing to file
a notice of appeal.” Flores-Ortega, 528 U.S.
at 477. The Court held that a 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 “his
appeal would likely have had merit.” Id.
(quoting Peguero v. United States, 526 U.S. 23, 28
cannot meet Strickland's prejudice prong. Even
assuming he directed counsel to initiate an appeal, a notice
of appeal was filed-albeit by Petitioner himself. The
inmate's case is thus distinguishable from
Flores-Ortega. See, e.g., Edwards v.
United States, No. 2:11-CR-229, 2014 WL 3793953, at *9
(S.D. Ohio July 31, 2014), report and recommendation
adopted, No. 2:11-CR-00229, 2014 WL 4437277 (S.D. Ohio
Sept. 9, 2014) (finding Flores-Ortega
“inapplicable” because a “notice of appeal
was filed on [petitioner's] behalf”). Therefore,
prejudice flowing from counsel's alleged failure to file
a notice of appeal is not presumed, and Petitioner must
demonstrate that he was prejudiced. He cannot meet
that burden. Counsel's alleged conduct did not prevent
the inmate from proceeding on appeal, and it was not the
cause of the appellate court's denial of
relief. Because counsel's alleged deficient
performance was of no consequence, Claim 3 is DISMISSED.
United States of America, is ORDERED to file a response to
the remaining claims within twenty-eight days from the date
of this order. See Habeas Rule 5(a).
may, if he chooses, submit a reply to Respondent's answer
or response within twenty-eight days of service. See
Habeas Rule 5(d). Petitioner may request an extension of time
to reply by filing a motion on or before the due date of his